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Flexible working tribunal claims rise sharply

The number of employment tribunal decisions relating to flexible working have leapt by 52% in the past year.

The year 2020-2021 (ending 30th September 2021) saw a record high of 193 cases, up from 127 in 2019-20, according to research by employment law firm GQ Littler.

The report found that the rise in the number of claims for flexible working may be being driven by employees resisting attempts by employers to bring them back into the office.

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The continuing uncertainty over COVID, and the occasionally haphazard issuance of governmental guidelines has brought some employers into conflict with employees over the timing of their return to the workplace.

Sophie Vanhegan, partner at GQ Littler, said: “The rise in cases relating to flexible working suggests this is becoming a battleground within some businesses.

“We may just be seeing the beginning of a tranche of claims taken against employers who’ve failed to deal with flexible working requests in a ‘reasonable manner’.”

Government guidelines state that while employees no longer have a statutory right to an appeal over any decision on whether they can work flexibly, if companies offer an appeals process, it will help to demonstrate that the employer is doing what it can to be reasonable.

Claims brought to the employment tribunals over flexible working are often brought alongside discrimination claims, said Keely Rushmore, employment partner at firm Keystone Law.

She added: "Whilst some employers may not be too concerned about the financial implications of a failure to comply with this requirement (the maximum compensation if the employee brings a Tribunal claim is eight weeks’ pay, capped at the statutory maximum, £544 per week), the risks significantly increase where the employee brings a claim of indirect discrimination as well, challenging whether the employer can justify its reasoning."

"This is most commonly framed as a sex or disability discrimination claim. Given compensation in discrimination claims is uncapped, getting things wrong can be a costly mistake."

A new mother was awarded £185,000 after a ruling which found she had suffered indirect sex discrimination when her employer refused to consider her flexible working request.

Vanhegan said: “When it comes to bringing employees back into the office, employers should be wary of taking a heavy-handed approach. 

“Many sectors are currently experiencing considerable challenges in hiring and retaining talent

“At the same time, more candidates are now asking for flexible arrangements at recruitment stage, so may be put off by would-be employers who aren’t open-minded to these requests.

“Similarly, if existing employees feel that their requests aren’t properly considered, they may vote with their feet.” 

At the moment, an employee has the right to apply for flexible working if they’ve worked continuously for the same employer for the last 26 weeks.

Legislation introduced to parliament in June 2021, and due its second reading in the House of Commons in March, will, if passed, give workers the right to work flexibly from their first day of employment.

Government guidelines state that employees can complain to an employment tribunal if the employer:

  • Did not handle the request in a ‘reasonable manner’
  • Wrongly treated the employee’s application as withdrawn
  • Dismissed or treated an employee poorly because of their flexible working request, for example refused a promotion or pay rise
  • Rejected an application based on incorrect facts