With workers in England being encouraged to return to the office, and Scotland relaxing its work from home guidance, many workers are returning to the office for the first time in almost two years.

Whilst some businesses are planning to continue with hybrid working, others aren’t. Yet working from home has brought benefits to so many workers in a variety of ways: no commute, making it easier to juggle work with family life and more time for wellbeing, to name a few.

During the pandemic we’ve seen the emergence of ESG (Environmental, Social and Governance) as an integral part of business strategy, and diversity, inclusion and wellbeing are key to any successful ESG initiative. So now is a good time for employers to think carefully about their return to work policy and how that aligns with their overall aims and objectives.

Recent research found that Employment Tribunal claims relating to flexible working requests rose 52% from 2019/20 to 2020/21. It was suggested that the number of claims was likely to be driven by employees resisting attempts by employers to bring them back to the office or seeking to build more flexibility into their role. We therefore anticipate that employers are going to be receiving more than one flexible working request in the coming weeks.

An employee has a statutory right to make a flexible working request if they have at least 26 weeks’ service. Their request can relate to hours of work, the times they work and where they work. If an employee’s application for flexible working is refused, then in some circumstances the employee may have a claim under the flexible working regime. However, the bigger risk for many employers is that the employee may also have a discrimination claim (dependent on the reasons for making the request and its refusal). For example, a women who wishes to work from flexibly for childcare may be able to raise a claim for indirect sex discrimination and an employee who wishes to work flexibly as a result of their disability may be able to raise a claim for disability discrimination.

Another group of the workforce from whom employers may face claims if they don’t permit flexible working is menopausal people. A recent study shows that 67% of menopausal people wanted to continue the option to work remotely after the pandemic. A common reasonable adjustment for menopausal people could well include: (a) more flexible working (able to sleep in if they’ve experienced disrupted sleep/take breaks); (b) proximity to toilets; (c) looser clothing/easier access to a change of clothing and sanitary products; and (d) greater privacy which allows for self management of issues. If their flexible working request is refused, they may have both an indirect sex discrimination claim and a disability discrimination claim (if their symptoms amount to a disability in law). Interestingly, MPs heard evidence last week on whether menopause should be a protected characteristic in its own right.

With supporting colleagues through menopause an issue increasingly talked about and highlighted in the media, it’s one that should be on the agenda of HR teams. At Burness Paull, we are proud to have been named Scotland’s first accredited menopause friendly employer and so we are excellently placed to provide both menopause friendly policies and training.

But it's not just the risk of Tribunal claims that employers should be thinking about when considering its approach to flexible working. Some employees are simply no longer willing to work where flexible working is not an option. If flexible working is not an option, this can result in businesses being unable to attract and retain a diverse workforce (and a lack/loss of the associated benefits that a diverse workforce can bring). In addition, if employees wish to work flexibly but are not permitted to do so, it can have implications for their wellbeing and also impact on productivity.

Please get in touch if you’d like to speak to us about implementing flexible working or other ways of aligning your HR policies with your ESG strategy.

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