UK Employment Law Coffee Break | Flexible working, neurodiversity and conduct issues, and new statutory family leave pay rates

Government announces right to request flexible working from day one

The government has this week responded to the "Making Flexible Working The Default" consultation, committing to the following changes:

• removing the 26-week qualifying period before employees can request flexible working, making it a day-one right;
• requiring employers to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request;
• allowing employees to make two flexible working requests in any 12-month period;
• requiring employers to respond to requests within two months, down from three; and
• removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer.

The day-one right to request flexible working will be delivered through secondary legislation.

The government has also committed to non-legislative action in the form of developing guidance to raise awareness and understanding of how to make and administer temporary requests for flexible working, and launching a call for evidence to better understand how informal flexible working operates in practice.

How will the new rules affect employers?

With many employers now operating hybrid working models the impact of this change will perhaps be less substantial than it might previously have been, although this will vary by sector and job role. The updated right will be to request a flexible working arrangement from the start of employment (rather than waiting to accrue the 26 weeks' continuous service currently required), but the grounds on which employers can legitimately turn down a request either in full or in part will not be changed.

The requirement for employers to explore alternative options where a request cannot be accommodated as proposed should encourage mutually acceptable solutions to be found rather than an employee being left in an all-or-nothing situation – good employment practice has been to take this approach in any event, but some employees have continued to experience resistance to any proposals, hence the momentum for a legislative change.

This year has seen a number of claims (some of which have hit the media spotlight) brought on the grounds of unlawful indirect sex discrimination, where flexible working requests have been unreasonably refused. It has been established statistically that more women than men have childcare responsibilities and are therefore disadvantaged by less family-friendly working practices, such as a requirement to work full-time. In such a case, an employer needs to show that there is objective justification for refusing the request. The new statutory requirement to fully explore all the possibilities for an individual working part-time should go some way to reducing the risk of an indirect sex discrimination claim where employers fully commit to this process.

Care must also be taken when considering flexible working requests from those who are making a request because of their association with someone with a protected characteristic, for example to care for a disabled relative. The Employment Tribunal has previously upheld a claim for indirect disability discrimination by association where a senior manager, who was the primary carer for her disabled mother, was required to be office based; this was found to be discriminatory and the need to have senior managerial supervision of more junior staff was not a legitimate justification on the particular facts of this case.

We are also seeing an increase in older members of the workforce looking for flexibility as many have caring responsibilities (including older relatives and grandchildren), are managing health issues or are simply looking for flexibility to work with their lifestyle. The Autumn Statement highlighted concerns around the numbers of economically inactive individuals because of long-term sickness, with a decrease in participation "seen particularly acutely within those aged over 50". A review by the Department of Work and Pensions is set to report on this in early 2023. A recent ONS survey of 50 to 70 year olds, who left the workforce during the Covid-19 pandemic and who were considering a return to work, reported that flexible working is most important factor when choosing a new job. With the proposed rule changes raising awareness of employees' statutory rights and the increased flexibility many employees are looking for since the pandemic, employers should pay particular attention to managing requests from older workers carefully and sensitively.

The Centre for Ageing Better has recently launched a nationwide age-friendly employer pledge to encourage employers to explore how they can maximise the potential of older workers in a multigenerational workforce. You can read Osborne Clarke's press release on signing up to the pledge here.

Neurodivergent staff: care needed when handling conduct issues

A recent Employment Appeal Tribunal (EAT) decision has highlighted that care is needed when handling conduct issues for neurodivergent staff. The claimant, a supervising social worker, was dismissed following a disciplinary process for her conduct in giving gifts to a child and because of what was considered to be inappropriate content in a case note. The claimant brought claims in the Employment Tribunal including for unfair dismissal and unlawful discrimination for something arising from her disability. It was accepted in the tribunal proceedings that the claimant was disabled by reference to autism, dyslexia and other matters, and the claimant alleged that in particular, her autism had impacted her judgement and understanding in relation to the gift-giving and appropriateness of her case note.  

Impact of inability for employer to assess risk of repeated misconduct

The EAT upheld the tribunal's decision that the claimant was not unfairly dismissed and was not discriminated against for something arising from her disability. On the facts, the employer had "reasonably formed the view that she had breached professional boundaries and that it could not be confident that she would not repeat that conduct if she was not dismissed… the claimant knew that she needed prior authority for the proposed gifts and that a breach was a potentially serious matter for which she could be dismissed". While the claimant had relied on her disability as an "explanation or excuse" for her conduct, she had refused to agree to an "expert report which could have been expected to advise [the employer] on the likelihood of repeated conduct of this sort and the possibility of measures to minimise the risk of repetition". It was difficult for the respondent to assess the risk in the absence of this advice and therefore a decision had to be taken without the benefit of any insights a report might have provided. In rejecting the claimant's appeal for unfair dismissal, the EAT found that the tribunal had not treated this refusal to obtain a report as an act of "further misconduct".

For the same reasons, the tribunal had been entitled to find that the claimant's dismissal "was not disproportionate" for the purposes of her disability discrimination claim. The evidence before the tribunal  was inconclusive and it was properly entitled to take that into account when considering whether retaining the employee in employment with a warning would in fact have sufficiently addressed the risk of her repeating her conduct in future.  

Allegation of 'masking' neurodivergence unlawful harassment

However, the EAT did uphold a claim of harassment based on a comment made by the appeal officer in correspondence with the claimant that "it was a matter of serious concern that the claimant had chosen to withhold her autism through 'masking' throughout much of her employment, potentially putting vulnerable children at risk". The claimant argued that the inference was that she had committed a deception in masking her autism and the tribunal found that the claimant's view that this statement violated her dignity was, in all the circumstances, reasonably held.

Importance of training managers and recognising the impact of coping strategies

This case is fact specific and must be read in the particular context of caring for vulnerable children. However, it is an important reminder for employers of the need to take care in managing conduct and performance issues where neurodivergence is known or suspected and to consider what reasonable adjustments should be made to support the individual, both in the performance of their duties and in understanding company policies and procedures, where necessary. An occupational health report can assist with this and employers should look to support employees in this process.

The decision also highlights the importance of training managers on supporting neurodiversity in the workplace and to recognise that individuals may well have developed coping strategies masking their difficulties for which they should not be unfairly penalised. Employees can be encouraged to share physical and mental health conditions to enable their employer to provide appropriate support and reasonable adjustments, but should not be compelled to do so (except in very limited circumstances). A well-publicised and supported diversity and inclusion strategy and good line management is key to creating an environment where employees feel confident to share any difficulties, and create an opportunity for potential issues to be addressed before any difficulties arise.

New statutory family leave rates of pay for 2023

The Department for Work and Pensions has announced the 2023/24 rates for statutory maternity, paternity, adoption, shared parental, parental bereavement and sick pay which will take effect in April 2023.

Statutory maternity, paternity, adoption, shared parental and parental bereavement pay will increase to £172.48 per week (from £156.66 per week).

Statutory sick pay will increase to £109.40 per week (from £99.35 per week).

This announcement comes following increases announced to the statutory national living and minimum wage rates in the Autumn Statement.