Global Employment lawyers, GQ Littler have said that the rise in the number of claims relating to flexible working requests was probably determined by employees resisting attempts to bring them back into the office. But in addition, employees with childcare responsibilities and/or health conditions could also be contributing to the rise.
Research by GQ Littler found that, in 2019-2020, the number of claims was 127. The previous highest figure was in 2018-2019 when 150 claims were recorded. However. in the past year there was a 52 per cent increase - bringing the number of claims to a record 193.
Uncertainty over the instructions given by the government with reference to working at home or office, appeared to bring a clash between employers and employees.
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’.”
She went on to suggest that businesses should be open-minded when receiving such requests and added:
“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.”
Keely Rushmore - Employment Partner at Keystone Law - said that claims brought to the employment tribunals over flexible working are often brought alongside discrimination claims and stated:
"Whilst some employers may not be too concerned about the financial implications of a failure to comply with this requirement, 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.”
Legislation was introduced to parliament in June 2021 and is due a second reading in the House of Commons in March. If passed this will give employees the right to work flexibly from their first day of employment.
The government guidelines state that an employee can complain to an employment tribunal if the employer does not manage their request in a reasonable manner; wrongly treats the employee’s application as withdrawn; dismiss or treat an employee purely because of their flexible working request or reject an application based on incorrect facts.
