BNY Mellon controversy highlights the need for employees to seek greater advice on flexible working, according to iLaw

The employment law team at innovative London law firm, iLaw, has said that employees should know their legal rights to safeguard their flexible work arrangements in light of recent developments.

Earlier this week it was reported that US banking firm, BNY Mellon, could face legal action from a number of its UK employees who alleged that the company was seeking to remove established flexible working arrangements without consultation.

Having heard the concerns of staff with flexible working arrangements in place and the impact that the removal of these arrangements it could cause, BNY Mellon’s chief executive, Charles Scharf, told staff that the firm had “listened and learned” and would not remove flexible working arrangements immediately in order to conduct a further review in the near future.

Julian Cox, Head of Employment Law at iLaw said that this should set an example to both employees and employers when it comes to flexible working arrangements.

“Remote flexible working has grown massively and is now a common feature of most modern workplaces.

“Trying to withdraw flexible working seems somewhat anachronistic by current standards, especially considering the power of modern technology and its ability to allow employees to work remotely,” he said.

Julian believes that employees could bring three types of legal claim against an employer if they attempt to withdraw established flexible working arrangements without prior consultation.

“Where a right to flexible working is explicitly written into an employment contract or implied by established working practices within the company, which have persisted for a number of months or years, then staff may be able to bring a breach of contract claim if they are not consulted and agreement reached prior to the arrangements being withdrawn,” explained Julian.

“During this consultation, the company will need to be able to make a clear argument for the withdrawal of rights. Any attempt to unilaterally withdraw existing employment rights without prior consultation and agreement is likely to amount to a serious breach of contract.”

Julian also believes that employees could also bring a discrimination claim against an employer based on indirect sex discrimination.

“In addition, if changes to working arrangements have an impact on childcare arrangements, then a mother may feel that she has been directly discriminated against due to her sex, for example,” he said.

“Cases of discrimination can lead to unlimited compensation being awarded in an employee’s favour, which could have a significant impact on a business’s finances and reputation.”

Employees could also make a claim for unfair or constructive dismissal, added Julian, on the basis that the employee resigns in response to the withdrawal of existing flexible working arrangements.

He said: “Where a person has been employed for two or more years, they can bring a claim for unfair/constructive dismissal where they feel that they are forced to resign as a result of the employer withdrawing established flexible working arrangements without agreement.”

A claim of unfair or constructive dismissal could also lead to substantial financial liabilities for an employer.

“Those who currently do not benefit from flexible working arrangements or who have had them withdrawn without consultation but do not wish to seek an immediate legal remedy have the right to make a request for flexible working in writing,” Julian said.

“An employer must respond to their employee within 28 days of the request with any reason for not allowing the arrangements.”

Julian said that justifiable reasons included:

• a burden of additional costs on the employer;

• a detrimental effect on the ability to meet customer demands;

• an inability to re-organise work among existing staff;

• an inability to recruit additional staff;

• a detrimental impact on quality;

• a detrimental impact on performance;

• insufficiency of work during the periods the employee proposes to work.

“If they can’t show that full-time working is justified then the employee can seek to appeal this decision internally within 14 days via their HR team (where available) and if this is dismissed then they can make a further claim at a tribunal under the Flexible Working Regulations,” added Julian.

Julian believes that employers should also ensure that they are familiar with the law surrounding flexible working arrangements before taking any action to alter or remove them so as to avoid inadvertently triggering employment claims by affected staff together with the potential adverse publicity that will attach to this. Legal advice ought always to be sought before taking any such action.