Flexible Working For Carers

Posted:31st October 2022

It is no secret that the global pandemic has given workers more confidence to ask for more flexibility in the workplace. With many being asked and agreeing to work remotely for extended periods, it has been proven that people can successfully work remotely and flexibly.

As such, the UK government has revised plans to extend the right to work flexibly by making it the default position. This would apply to all employees unless an employer can give good reasons why a particular employee would not be entitled to this.

The current law says that an employee has a right to request flexible working if they have been employed for at least 26 weeks or 6 months continuously however the government’s proposal is to allow all employees to make requests to work flexibly from the first day of their employment.

Flexible working requests may include things like flexi-time where employees wish to work outside of their normal contracted hours, or working from-home days. It could also involve working compressed or condensed hours where someone works longer on some days and less on others.

Currently, an employer can deny a flexible working request based on 8 permitted grounds relating to the effect the change would have on the Business:

  • It will cost too much to justify the flexible working arrangements
  • Work among staff cannot be reorganised
  • The employer cannot recruit more staff to accommodate the flexible request
  • There will be a negative effect on the quality of work produced
  • There will be a negative effect on the business and its ability to meet customer demand
  • There will be a negative effect on performance
  • There’s not enough work that can be provided during the times you’ve requested to work
  • There are planned changes to the business that your request will not fit with

The criticism of the law as it stands is that employers can find it quite easy to refuse a request for flexible working since the eight business reasons for turning down a request are broad and cover almost any scenario. It is therefore relatively easy for an employer to deprive an employee of the opportunity to work flexibly.

There have been a number of recent cases brought before Employment Tribunals by those with caring responsibilities seeking flexible working arrangements or opposing proposals to change their working arrangements. The cases have identified that employers may be indirectly and unlawfully discriminating against workers.

In the Case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal in a rare observation noted that a childcare disparity exists between women who are statistically more likely to have childcare responsibilities, and men, who are not.

The same disparity translates to those employees who have responsibility for the care of other dependants such as people suffering from disabilities or the elderly. The argument run by a number of successful Claimants is that the refusal of their requests amounted to indirect discrimination which could not be objectively justified.

As a result, it is likely that flexible working requests will become increasingly popular in the post-pandemic era. In addition, employers faced with flexible working requests from women with caring responsibilities ought to be more vigilant when refusing these.

The risk is that their decisions could give rise to claims of discrimination as well as other challenges from those unhappy with the response to their request.

To speak to our Employment team please contact [email protected] or call on 0191 338 6113.