We normally look to the Scandinavians when it comes to progressive employment practices, however, Portugal it seems is at the forefront of the flexible working revolution after passing laws earlier this month to protect workers from being exploited in connection with remote working and other arrangements which allow staff to work flexibly.
As of 5 November 2021, employers in Portugal are prohibited from texting and emailing staff out of hours while parents are allowed to work from home indefinitely without requiring their employers’ approval until their child turns eight.
While we are unaware of any plans to introduce similarly specific measures in the UK, employers still need to take care to avoid falling foul of the law when it comes to introducing flexible and hybrid working arrangements and managing flexible working requests.
There is always a risk that allegations of discrimination could arise where employers find themselves managing competing requests for homeworking or other ways to work flexibly. As recently acknowledged by the Employment Appeal Tribunal in Dobson v North Cumbria Integrated Care NHS Foundation Trust (UKEAT/0220/19/LA), the ‘childcare disparity’ – the fact that women bear a greater childcare responsibility than men – continues to exist and employment tribunals are obliged to take notice of it when considering indirect sex discrimination such as, in the case concerned, a requirement to work occasional weekends as part of new flexible working arrangements introduced by the Trust. These arrangements put Ms Dobson at a particular disadvantage due to her childcare responsibilities and while other female members of her team were able to meet the requirement, the tribunal was held to have erred in not taking account of the childcare disparity and treating Ms Dobson’s case as unsupported by evidence.
Remember that employees have a statutory right to request flexible working which is open to individuals who have more than 26 weeks’ service with their employer and have not made a flexible working request in the last 12 months. As things stand, the employee only has the right to request flexible working – there is currently no right to flexible working in itself. A flexible working request must be made in writing, dated, explain the flexible working pattern that the employee would like and the date they would like it to become effective. The employee should also explain the change they think it will have on the business and how that change can be addressed.
Types of changes that can be requested include:
- A request to vary working hours (for example, to work fewer hours or to go part time).
- A request to vary working times (for example, to start or finish work earlier or later, or to work on different days).
- A request to work from home or another location instead of the usual place of work.
An employer must deal with a flexible working request in a reasonable manner and notify the employee of its decision within three months of the request. Most employers are likely to meet with the employee to discuss the request although this is not strictly necessary. What is required is that the employer may only refuse the request on one or more specific “business” grounds, namely:
- The burden of additional costs;
- The detrimental effect on ability to meet customer demand;
- The inability to re-organise work amongst existing staff;
- The inability to recruit staff;
- The detrimental impact on quality;
- The detrimental; impact on performance ;
- Insufficiency of work during the periods the employee proposes to work; or
- Planned structural changes e.g., the employer intends to reorganise or change the business and thinks the request will not fit with those plans.
As the grounds for refusing a request are wide, in many circumstances it will not be difficult for an employer to find a reason justifying this. Such decisions are not risk free though – in Thompson v Scancrown (Case Number 2205199/2019), London Central Employment Tribunal upheld a claim for indirect sex discrimination by a sales manager at an estate agents whose request for flexible working arrangements following her return from maternity leave was rejected, and awarded total compensation of £184,961. The employee had requested to move from working five days to four days a week, and to finish an hour earlier, in order to enable her to collect her child from nursery. Although the employer purported to rely on costs, customer demand, inability to reorganise work or recruit staff and planned structural changes from the above grounds, the tribunal found there was no evidence that proper consideration had been given to the flexible working request and, instead, the employer’s justification relied on mere assertions rather than genuine reasons.
Some interesting examples, then, of where flexible working may be taking us, although these two cases are probably only the tip of the iceberg as employers grapple with the new world of work emerging from the effects of the pandemic.
If you or your business face similar challenges, taking a step back and remaining objective can be difficult, however, our Employment Team can help you make the right decisions for your business.
For more information, please contact Paul Clark, Head of Employment on 01642 356500 or 0191 206 9626, or via pclark@jacksons-law.com
