The World of Flexible Working & ET Case – Employee Awarded £38,000 – 12/10/2021

So, what does that mean for employers? We are all too aware that it is currently a candidate led market and see more that flexibility is becoming part of employment contractual negotiations.
The World of Flexible Working and ET Case Employee Awarded £38,000 - Black Mountain HR

In our 9 September newsletter we set out the case of Mrs Thompson v Scancrown Ltd t/a Manors Estate Agents where a female employee was awarded £184,000 compensation by the Employment Tribunal.

Another ET case has now been heard and decided upon, and the courts are having their say and it isn’t in the favour of employers unfortunately.

In the case of Mrs C Daly v BA City Flyer Ltd this long-serving employee requested under the statute to reduce her working week by 25% due to childcare following maternity leave.

BA City Flyer refused this request and set out their business reasons for doing so. However, the courts took a different view of their business reasons and the claimant (Mrs Daly) provided evidence that BA refused all flexible working requests for new mums returning from maternity leave, and many female employees based on that knowledge simply resigned at the end of their maternity leave. BA could not defend this.

Mrs Daly was awarded £38,000 for indirect sex discrimination. In the judgement the judge was clear that in fact BA did not give any real consideration to Mrs Daly’s request and simply went through a rubber stamp process.

Over recent months and considering the way and where we worked during lockdown, it appears that the right to request flexible working is moving ahead with gusto. Many of you will have seen that although currently an employee must have 26 weeks’ continuous service to be able to have the statutory right to request flexible working, the government (and CIPD) is calling to make this a default from day 1 of employment. Also, the recruitment sector has seen an increase in candidates seeking roles with companies who provide flexibility, and this is now ahead of salary when candidates are considering their next career moves.

So, what does that mean for employers? We are all too aware that it is currently a candidate led market and see more that flexibility is becoming part of employment contractual negotiations. Are employers who are rigid in their stance that everyone must be at the office, working set hours with little or no flexibility going to be those companies left behind and not attract or retain the talent they need,  or can this be the time to be more open-minded and a culture shift within an organisation, to become more inclusive, diverse and support staff with their lifestyle choices?

Does it really mean (as we have seen from some CEOs in the media) that the perception of those working from home (example) are sitting around in their PJ’s till 9am and then watching loose women is the reality – I don’t think so. In fact, we see people feeling compelled to be “seen/available” at all times – meaning that they are actually at their home desks working longer hours and in a lot of cases, not even taking lunch or having a break as they fear that if they are not “contactable” at all times the perception is that they are not working.

We all need to change our attitudes (employees and employers) as this pace and style of working cannot be sustained long term without mental health issues and burnout occurring which we are now seeing all too often, which has a detrimental effect not only on the employee, but the business.

If you receive a formal flexible working request from an employee – make sure you are open minded in what is being requested, and really consider whether you can accommodate their request or even if you can’t agree to all elements of the request (for business reasons), can you offer a compromise and/or at least trial so that both parties can conclude whether in fact in practice the changes do and can work without a negative effect on the business?

What about Blue-Collar Workers?

Flexible working (either adapting or reducing working hours or place of work) in the main are requested by white-collar workers, but what about blue-collar workers? 

As many organisations have a proportion of blue-collar workers, for example,  manufacturing that requires people to be on a line, then flexible working (working from home) cannot be agreed, but are there are other elements of flexible working that could be considered to allow them to find the home/work life balance?  Yes, there are.

Some organisations are introducing TOIL (time off in lieu) which allows staff to have time off outside of peak periods, by offsetting additional hours worked during the peak times, and organisations find this a win-win situation, as additional hours worked is not paid. This approach also allows the workforce the downtime to spend with their families/hobbies etc and therefore has a positive impact on their work/home life balance.

The world of working has and will continue to evolve and by approaching flexible working in a forward-thinking manner will certainly drive loyalty (and therefore retaining your talent) within your current teams but will attract talent for your recruitment initiatives.

(see judgement here)

Our HR team are always available to discuss any guidance regarding handling statutory and non-statutory flexible working requests.

Black Mountain Group

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