Flexible Working – new challenges ahead for retail employers?

The world of work is changing and the changes are particularly pronounced in the retail sector. The pandemic has led many employees to re-evaluate their working arrangements and explore the scope to work flexibly. The government too is proposing changes on flexible working. Retail employers, many of whom will already be juggling complex rota / shift systems and streamlined workforces, will no doubt face challenges in this respect. Our retail team consider what the proposals mean for retail employers and explore some key issues worth thinking about.

This publication of the Government’s consultation paper on flexible working is a timely reminder that flexible working is not only here to stay, but that employers need to be aware of potential changes on the horizon. While a consultation process is just that – providing the opportunity for proposals to be bolstered or diluted – it serves as a platform to reflect on how your business deals with flexible working requests and to what extent your business can reasonably accommodate flexible working. 

Earlier this year, our employment team explored flexible working in a post-pandemic world and, at that time, we awaited publication of the Government’s consultation (which it proposed in its 2019 Conservative Manifesto) on ‘making flexible working the default.’  The consultation paper has now been published, and the Government invites responses to its six key proposals on flexible working by 1 December 2021.  We looked at these proposals in detail in our recent article ‘Changes on the horizon – Government consultation on flexible working.’

What might the flexible working proposals mean for retail employers?

Unsurprisingly, the working patterns of many retail employees are dictated by business / customer demand.  The pandemic has, particularly for those employers in the retail industry, necessitated significant reductions in FTE / headcount.  The result is an even greater need for flexibility from staff.  Against this, staff coming off furlough are looking for new working patterns which better fit their lifestyle or the demands of their families.  This produces an obvious tension.  The prospect of changes to the existing flexible working rules, such as a day one right to request flexible working, a right for employees to make multiple requests within a 12 month period, and potentially more onerous obligations around evidencing the rationale for refusing a request, may well pose real practical (and legal) challenges for retailers.

It is timely then to reflect on the following:

• Who makes decisions on flexible working requests within your business? Do you have a formal flexible working policy?  Do you have established procedures to manage and respond to requests?

In many retail businesses, decisions in respect of staff working arrangements are made at a store or regional management level and may not always involve HR. Managers may therefore agree flexible working arrangements without a clear paper trail or without following a formal procedure, for example via phone call or text.

Do your managers understand the difference between informal and formal flexible working arrangements?  Are they adequately trained to understand the risk of potential claims relating to non-compliance with flexible working requirements, unfair dismissal, discrimination and victimisation?  What procedures are in place to ensure there is consistency of decision-making?

• Are there material differences in the flexibility you afford to staff who work in head office, in distribution chains, or on the ‘shop floor’?

Traditionally, working in retail has been attractive to those who want to work flexibly; particularly in terms of working on a casual or part-time basis. However, in many cases, office workers and managerial staff are currently likely to be afforded greater flexibility in terms of where, when and how they perform their role. Whatever the case for your business, it is worth considering how a differing approach to agile working across the company might impact on culture and commitment, as well as potentially impacting internal development, and recruitment / retention of talent.

• Has flexibility already been established by custom and practice? 

For some retailers, irrespective of policy / procedure, it is not uncommon for rostered workers to agree amongst themselves to swap or vary their shifts, or for office based staff to work remotely from time to time, or to work changeable hours to suit their personal circumstances.

If this is the case for your business, how is this flexibility monitored / regulated to ensure that

• staff are working their contracted hours and are being paid for the hours they work;
• staff are not working in a manner which compromises their health and safety (for example, not taking sufficient breaks between periods of work);​
• the business continues to have necessary oversight of productivity;
• there is sufficiency of cover; and
• working arrangements (for example working remotely) do not compromise the business’ insurance cover.

If ad-hoc or informal flexibility is common practice in your business, on what grounds could you reasonably refuse an employee’s request to permanently amend their working patterns to align with those existing arrangements?

• What flexible working requests have you typically received, and do you anticipate an influx of requests of a particular type? 

Some common types of flexible working requests in retail include:

• working a fixed shift pattern;
• working regular weekday hours (avoiding working at weekends or early morning/ late night shifts);
• starting later/ finishing earlier (for example, to do the school run).

It is worth considering the degree of flexibility you might be able to afford within your business, and whether you might proactively encourage employees to explore those options, so that they are less likely to request other flexible working arrangements which might be more difficult to accommodate.

Consider, for example: is it possible to facilitate flexibility of start and finish times while still meeting customer demand? If the business is moving towards a greater online presence, could some customer service roles be performed remotely?

• Is your business alive to the risk of discrimination claims in respect of flexible working requests, particularly on the grounds of sex and disability?

To the extent that you are refusing a request to work flexibly, the recent case of Mrs A Thompson v Scancrown Ltd T/a Manors: 2205199/2019 (which we consider in our article ‘Changes on the horizon – Government consultation on flexible working’) is a stark reminder that employers must do more than pay lip service to the statutory grounds for refusal; the potential financial exposure for employers who cannot sufficiently evidence their rationale can be significant. 

It is key that consideration is given to whether the refusal of a flexible working request would unfairly disadvantage women as compared to men. For example, a refusal to allow a woman to adjust her working hours so that she can take her children to school, could, because of the childcare disparity (the fact that women continue to be the predominant primary caregivers), lay the foundation for a successful sex discrimination claim.

Similarly, an employee with a disability could pursue a disability discrimination claim if their flexible working request is denied, and that results in a disproportionate disadvantage to them because of their disability.

It is certainly worthwhile exploring the rationale for flexible working requests, and proposing alternatives, and/or trial periods where a request is not workable, in the first instance.

Please speak to a member of the employment team or your usual Clyde & Co contact if you have any questions or would like advice on flexible working requests.