According to research by a leading London employment law firm - GQ Littler - the number of Employment Tribunal decisions relating to flexible working cases reached a record high in the year to end of September 2021. That year saw 193 cases, more than a 50% rise from 127 cases in the previous year and also surpassing the previous high of 160 cases in 2018-2019.

The Employment Tribunal decisions have been in regard to a mixture of remote and office-based working and according to GQ Littler, have more probably than not been as a result of employers requiring staff to return to office based working and not agreeing to flexible working. It is felt that disputes regarding the timing of returning to office based workplaces have arisen because of the uncertainty over COVID WFH guidelines, especially amongst employees suffering from health conditions and those with parenting responsibilities.

Sophie Vanhegan of GQ Littler stated:

“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’.”

In order to turn down a flexible working request from an eligible employee, employers must consider that one or more of the following eight reasons apply to the working arrangements:

• The additional costs would impose a burden.
• The request would have a detrimental effect on ability to meet customer demand.
• An inability to re-organise work among existing staff.
• A inability to recruit additional staff.
• Agreeing to the request will have a detrimental impact on quality.
• Agreeing to the request will have a detrimental impact on performance.
• There is insufficient work during the periods the employee proposes to work.
• There are planned structural changes.

According to GQ Littler the commonly used of these reasons is that flexible working would have a “detrimental impact on performance” or a “detrimental effect on ability to meet customer demand”. Sophie Vanhegan however warned that employees may begin to “vote with their feet” should employers use “heavy-handed” approaches to flexible working.

She added that employers who were unsure about agreeing to flexible working requests could consider granting these on a trial basis, which would then show definitively whether the arrangement was workable for the business and the employee.