Extended flexible working rights and disabled workers

How will the new day-one right to request flexible arrangements affect those with disabilities?

Excello Law Employment Partner Hina Belitz has written a thought-provoking article for People Management looking at the government’s suggested employment law changes instituting and expanding the right to make flexible working requests. Hina looks at how these legislative changes will be of significant benefit to disabled employees in particular, but  howit is likely these changes will have far less impact than intended for those with disabilities.

Changes to Flexible Working Legislation

On 6 April, legislative changes came into effect, including making the ability to request flexible working a day-one right. This offers significant benefits over the previous regime, in which employees had to have worked for six months before being able to make such a request.

Flexible working requests can include requests for changes in the hours an employee works, the times they are required to work or their place of work. Employees can now make the request at any time during their employment and are also no longer required to explain the impact of their requested arrangements on the employer and how this could be addressed. Employers must handle requests reasonably and are required to consult with employees before rejecting a request.

Impact on Disabled Employees

Flexible working arrangements can, of course, be beneficial for disabled employees in various ways. This might be by helping to accommodate medical appointments and treatment, ensuring staff can structure their working patterns around unpredictable symptoms, or removing the stress and exertion associated with the daily commute.

But disabled employees have always had a day-one right to request reasonable adjustments, which can include flexible working, so it is unclear what additional benefit the new flexible working legislation provides these employees. Also, the right to request flexible working is comparatively weak when considered alongside a disabled employee’s right to reasonable adjustments.

If an employee makes a request for flexible working as a reasonable adjustment for their disability, the employer does have to consider this request in line with its Equality Act 2010 obligations. Nevertheless, the two rights are distinct, and there is no reason for a disabled employee to make a request for reasonable adjustments through the mechanism of a flexible working request, particularly because flexible working may only be one of multiple adjustments from which the employee could benefit.

The right to request flexible working may, however, be more helpful to employees who may not meet the legal threshold for disability; for example, because their condition has not lasted and is not likely to last at least a year. While flexible working requests are generally presumed to be made on the basis of permanent changes, a request could be made for a temporary change, which may well assist those going through acute physical or mental health difficulties.