Do flexible working requests help employers to retain staff?

Work culture is changing, says Catherine Mitchell, and businesses need to keep in step

Credit: Gary Burchell/10'000 Hours/Getty Images

In the face of the current skills shortage, retaining your current staff should be a relatively easy win, but the British Standards Institution (BSI) has just published a report into women leaving the workforce early – and not out of personal preference. The BSI examined the factors in their early departures and termed the phenomenon the ‘second glass ceiling’. Of the UK women surveyed, 21 per cent cited caring responsibilities (for parents or children) as a barrier to continuing in work.

Looking at the history of the statutory right to request a flexible working pattern, the rise of employment tribunal claims for indirect discrimination, on the grounds of a refusal of a request, is perhaps unsurprising.

The right to request flexible working was first introduced in 2003. It initially applied only to some parents and has gradually developed so that any employee can ask for flexible working arrangements as soon as they have 26 weeks’ service. Proposals to make this a day-one right, as well as increasing the number of requests that can be made in any 12-month period, are currently being considered by parliament. Despite these changes, the right is still a limited one: it extends only to making a request and having it considered in a prescribed manner, including the right to appeal. Critically, an employer can still refuse a request if it can demonstrate one of eight business reasons for doing so.

Although refusal of a request does not provide direct grounds for making a claim of discrimination, any business that is not able to justify its refusal or appears to reject applications as a default does risk a claim of indirect discrimination from female staff with childcare responsibilities. Since women remain more likely to shoulder caring responsibilities, the Employment Appeal Tribunal has reminded employment tribunals that they should continue to take judicial notice of the childcare disparity. This means that they do not need to provide evidence that they are more likely to be disadvantaged by a refusal to agree to a flexible working request.  

Although many businesses have been able to support staff with hybrid and flexible working arrangements, particularly through the pandemic, some remain reluctant to fully embrace flexible models. Some industries will clearly not be able to accommodate demands that clash with operational needs, but employers that close their minds to what is possible, particularly when employees can point to successfully meeting all targets through the pandemic, are likely to find themselves at increasing risk of successful claims. In a world where candidates are increasingly discerning about the values of the employer they choose, it’s worth remembering that employment tribunal judgments are now published online and discoverable to informed candidates. 

Since the skills shortage affects businesses across all sectors in the UK, it may be timely to review how flexible working can work for your organisation and support recruitment. Recent cross-industry insight shows where skills gaps are more prevalent. There are many resourceful ways in which to address the issue with your existing workforce, without resorting to recruitment. 

Culture is key and when people are your biggest asset, but what they want is changing, employers need to change with them. Create a truly competitive proposition so that you are an employer of choice.

Catherine Mitchell is a partner at Harrison Clark Rickerbys