Hybrid Working and the 'new normal' of claims

Hybrid working is becoming a source of increased litigation

Flexible working law has not changed in recent years, but the world has changed around it. It remains fairly simple for an employer to reject a request for flexible working, using one of the set statutory reasons. What is now more difficult is for the employer to reasonably establish that the reasons, in fact, exist. People now have evidence that flexible working can be successful, and will often have actual evidence of they themselves working flexibly at the job they are making the request in respect of. Infrastructures and technical support have all had to be put in place, and thus employers are navigating a different landscape when they look at this area.

The TUP published statistics in May 2022 which showed that regular homeworking by UK workers has tripled, rising from 6.8% in 2019 to 12.1% in 2020 to 22.4% in 2021. They showed a permanent increase in homeworking, with 91% of those who worked from home in the pandemic wanting to continue working remotely some of the time.

The result for employers is an increased willingness of their employees to use discrimination laws

One thing we have seen an increase of is that more women are bringing discrimination claims, relying on the fact that a refusal of flexible working requests impacts more on them than it does men, due to the higher numbers undertaking caring roles. Proposed changes to the flexible working legislation look to have been considerably rowed back from the initial suggestions, but discrimination claims can make any flexible working request an area that needs careful consideration.

For employers, this means they are increasingly at risk when making decisions on flexibility

A few recent cases illustrate how employers are facing more frequent, and more successful, challenges to their working practices:

• In the case of Dobson v North Cumbria Integrated Care in February 2021, the Employment Appeal Tribunal specifically ruled that the “childcare disparity” still exists and should be considered when looking at whether women are likely to be disadvantaged by requirements to adhere to particular working patterns.
  
  
• Follows v Nationwide a woman with caring responsibilities was found to have been indirectly discriminated against by the policy requiring people to return to the office and give up their home-working arrangements.
  
  
• Mrs A Thompson v Scancrown Ltd t/a Manors hit the press in September 2021 when nearly £200,000 of compensation was awarded due to refusal of a Flexible Working Request made by a female estate agent on return from maternity leave. It is notable that a key part of the request was to finish at 5pm, as most nurseries close at 6pm, and that refusing to allow this put her at particular disadvantage.

Another notable outcome of this litigation is that, following the Dobson decision, women will not have to provide their own supporting evidence when pursuing claims of indirect sex discrimination where it is childcare which is putting them at a disadvantage. Simply stating that the reason they are disadvantaged is childcare will be enough. It is not, however, a “blank cheque” for women to use to obtain any arrangements they like. Working practices can be justified even where they do lead to indirect discrimination by showing it is a “proportionate means of achieving a legitimate aim”.

What do you need to do to avoid claims?

Employers should treat all applications for flexible working carefully. Blanket refusals will need to be very carefully considered, and there may need to be exceptions even for that, especially where the worker has disability protection as well. The duty to make reasonable adjustments will be an even higher burden.

Essentially, where the employer is making decisions around working practices – whether to instal a new policy or rule; to change existing rules; or to deal with individual requests – it is highly advisable to get some advice in the first instance. Discrimination claims are costly to defend even if successful, and, as Mrs Thompson’s case shows, can have heavy penalties if they are lost.