The number of Employment Tribunal decisions relating to flexible working have increased 52% to reach a record high of 193 in the past year*, up from 127 in 2019-20, shows research by GQ|Littler, the specialist employment law firm.
GQ|Littler says the number of claims relating to flexible working requests may be being driven by employees resisting attempts by employers to bring them back into the office or otherwise seeking to build more flexibility into their role. In some businesses there have been tensions between employers and employees over the timings of returning to the workplace as the easing of Covid restrictions have facilitated employers to reopen their workplaces.
GQ|Littler says employees with parenting responsibilities and people suffering from health conditions (or with vulnerable relatives) may have contributed towards the rise in claims.
The firm says that in order to turn down a flexible working request from an eligible employee, employers must consider that one or more of eight prescribed reasons apply and reference it/them in their refusal. The most commonly utilised are that flexible working would have a ‘detrimental impact on performance’ or a ‘detrimental effect on ability to meet customer demand’.
GQ says claims brought to the Employment Tribunals over flexible working are often brought alongside discrimination claims. For example, a new mother was awarded £185,000 by an employment tribunal who ruled she had suffered indirect sex discrimination when her employer refused to consider her flexible working request.
Sophie Vanhegan, Partner at GQ|Littler says: “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’.”
“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.”
GQ|Littler says that employers who are unsure about granting employees’ flexible working requests should consider agreeing to these on a trial basis. This way, they can gather evidence as to whether or not the arrangement is workable for the business as well as the employee and then provide more detailed evidence if one of the eight specified reasons for refusal is met.c
Flexible working claims at Employment Tribunals reached record high
GQ|Littler is a leading specialist employment law firm and the London office of Littler, the largest global employment and labor law practice devoted exclusively to representing management. With more than 1,600 lawyers in 100 offices worldwide, GQ Littler serves as the single source solution provider to the global employer community.
Offering risk-based contentious and non-contentious advice, our legal expertise includes employment, immigration, data privacy and employee tax and incentives. Our client base spans a wide range of sectors including financial services, technology, healthcare, professional services and luxury goods, in the UK and internationally.
GQ|Littler is recognised as a leader in its field by both Chambers & Partners and Legal 500, which describes the firm as an “excellent team with strength and depth in every aspect”.
For expert insight into the pandemic’s impact on the future of the European workplace, including in the areas of remote work, employee wellbeing, managing annual leave and workforce reductions, see Littler’s European Employer COVID-19 Survey Report.