The History & The Current Position of Flexible working in England

Flexible working, including the ability to work remotely, has increasingly become a norm in England. The flexibility in where, when, and how employees work has grown more prominent over the years, spurred by advancements in technology, shifts in workplace culture, and significant events like the COVID-19 pandemic. As flexible working continues to shape the employment landscape, understanding its legal foundations, recent developments, and notable cases is essential for both employers and employees.

The Rise of Flexible Working in England

Flexible working in England has undergone considerable evolution, particularly in the past decade. Initially, flexible working arrangements were primarily accessible to parents and caregivers. However, in 2014, legislative reforms extended the right to request flexible working to all employees with a minimum of 26 weeks of continuous employment. This change represented a significant step towards making flexible working a standard rather than an exception.

These arrangements can include adjustments to working hours, shift patterns, or even the location of work, enabling employees to choose between working remotely or within traditional office settings. Today, as flexible working continues to gain popularity, more individuals are advocating for the right to adjust their work environments to better suit their personal lives.

The Legal Framework for Flexible Working in England

The legal framework supporting flexible working in England sets clear guidelines on how employees can request these arrangements and the conditions under which employers may deny them. Employees are allowed to formally request flexible working arrangements, which could involve:

• Changes in work hours.

• Adjustments in workdays.

• Shifting from in-office to remote work.

  
  

Employers must consider each request reasonably and can only refuse based on specific grounds such as:

1. Excessive cost burdens.

2. Adverse effects on meeting customer demand.

3. Challenges in reorganizing work among staff.

4. Difficulty in recruiting additional staff.

5. Impact on quality or performance.

6. Insufficient work during the requested hours.

7. Planned structural changes within the organization.

   
   

Despite flexible working becoming more accessible, not all requests are granted, as employers may have legitimate business reasons for refusal. Recent trends show an increase in cases where employees challenge these refusals, reflecting the growing importance of flexible working in England's workplaces.

Recent Developments in Flexible Working Rights

In response to changing work environments and employee demands, the UK government has taken steps to strengthen flexible working rights. In 2021, a government consultation titled “Making Flexible Working the Default” proposed that employees should have the right to request flexible working from their first day of employment, rather than after six months. This shift aims to place the onus on employers to justify why flexible working cannot be accommodated, thus fostering a more inclusive approach to employment.

This movement towards enhanced flexible working rights highlights the need for ongoing adaptation within the workplace. Although the consultation results are still pending, the discussion signals a continued emphasis on flexible working in England, making it a priority for lawmakers and businesses alike.

4. Case Law: Successes and Challenges in Flexible Working Requests

Examining case law provides insight into how courts interpret and enforce the legal framework governing flexible working in England. Here are notable examples where employees either succeeded or encountered obstacles in securing flexible working arrangements:

Case 1: Success - British Airways plc v. Starmer ([2005] IRLR 862)

Facts

Ms. Starmer, a pilot with British Airways, requested a reduction in her working hours to better balance her family responsibilities. She proposed moving to a 50% part-time schedule, which she believed would allow her to maintain her role while also fulfilling her parental duties.

British Airways initially rejected her request, arguing that part-time working at the proposed hours would disrupt operational requirements, particularly regarding pilot availability and flight scheduling. After further negotiations, British Airways offered her a 75% part-time arrangement instead.

Employee’s Argument

Ms. Starmer argued that the refusal to accommodate her initial request for a 50% part-time schedule was discriminatory and constituted indirect sex discrimination. She claimed that the 75% offer did not sufficiently address her needs for balancing work and family life.

Decision

The Employment Tribunal initially ruled in favour of Ms. Starmer, finding that British Airways’ refusal amounted to indirect sex discrimination. The tribunal highlighted that more women than men are likely to request flexible working arrangements due to family responsibilities, and thus, the refusal put women at a particular disadvantage.

The case was then brought to the Employment Appeal Tribunal (EAT), which upheld the original tribunal's decision. The Employment Appeal Tribunal found that British Airways failed to demonstrate sufficient justification for refusing the 50% arrangement based on its operational requirements. The EAT emphasised the importance of making reasonable accommodations to enable employees, especially women, to balance work and family obligations.

Reasoning

The Employment Appeal Tribunal ruled that while employers can refuse flexible working requests on operational grounds, they must demonstrate that the refusal is proportionate and justifiable. In this case, the Employement Appeal Tribunal concluded that British Airways had not sufficiently proven that a 50% part-time arrangement would disrupt operations to the extent claimed.

Case 2: Failure - Dobson v. North Cumbria Integrated Care NHS Foundation Trust ([2021] EWCA Civ 356)

Facts

Ms. Dobson, a community nurse employed by the NHS Trust, requested flexible working hours to accommodate her childcare responsibilities. She sought not to work weekends, claiming that the Trust’s requirement for all nurses to work on a rotating shift schedule, including weekends, indirectly discriminated against women. This was on the grounds that more women have childcare responsibilities and therefore may struggle with irregular or non-family-friendly hours.

Employer’s Argument

The NHS Trust argued that their shift requirements were necessary to ensure adequate staffing levels and to provide continuous, high-quality care for patients. They contended that allowing exceptions for one nurse would disrupt staffing and impact service delivery, as all team members were needed to maintain effective coverage across all shifts, including weekends.

Decision

Initially, the Employment Tribunal found in favour of the NHS Trust. Ms. Dobson appealed, and the case was reviewed by the Employment Appeal Tribunal and then the Court of Appeal, which upheld the original decision. The courts found that the NHS Trust had legitimate operational reasons for its staffing requirements and that the need for a fair and consistent shift pattern was justified.

Reasoning

The Court of Appeal emphasized that the employer’s duty to provide consistent care to patients was a sufficient operational need that outweighed the flexible working request. The decision reinforced that, while employers must consider flexible working requests fairly, they are permitted to refuse them when there are substantial business justifications, such as ensuring adequate staffing for patient care.

Case 3: Success - Thompson v. Scancrown Ltd (t/a Manpower UK) ([2006] IRLR 375)

Facts

Ms. Thompson, who had recently returned from maternity leave, requested flexible working hours to accommodate her childcare responsibilities. Specifically, she sought to work reduced hours or adjust her work schedule. Scancrown Ltd. denied this request, prompting her to file a claim based on indirect sex discrimination.

Employee’s Argument

Ms. Thompson argued that Scancrown Ltd.’s refusal to accommodate her request for flexible working arrangements placed her, as a woman with primary childcare responsibilities, at a disadvantage. She contended that the employer’s decision indirectly discriminated against her because more women than men tend to be primary caregivers and are therefore more likely to request flexible working arrangements.

Decision

The Employment Appeal Tribunal ruled in favour of Ms. Thompson. The tribunal found that Scancrown Ltd. had indirectly discriminated against her by failing to adequately consider her request for flexible working arrangements. The Employment Appeal Tribunal emphasised that employers must provide objective justification for refusing flexible working requests, particularly when such refusals may disproportionately impact certain groups, such as women with childcare responsibilities.

Reasoning

The Employment Appeal Tribunal’s decision underscored that refusals based on flexible working requests can constitute indirect discrimination if they disproportionately affect a protected group, such as women. The employer is obligated to justify its refusal by proving that the decision is a proportionate means of achieving a legitimate business aim. In this case, Scancrown Ltd. did not provide sufficient evidence to justify why Ms. Thompson’s request could not be accommodated, leading the tribunal to rule in her favour.

The Future of Flexible Working in England

As flexible working becomes increasingly embedded in the cultural and legal landscape of England, organisations must adapt to these changes. The evolving legal framework and rising employee expectations underscore the importance of flexibility as a competitive advantage in recruitment and retention. Furthermore, as more cases emerge, the courts will continue refining the criteria under which flexible working requests are granted or denied, shaping the future of work in England.

The continuing trend towards flexible working in England illustrates a broader shift in how businesses approach employee well-being, productivity, and work-life balance. By fostering a culture that values flexibility, companies can support their workforce while meeting modern employment standards and expectations.