As you would expect, there is no way in which the law can enforce change on an employer’s business to suit one employee. Looking at this from an employer’s point of view, there may be ways and means of accommodating changes in an employees’ private life which may also be beneficial to the business. However, with the best will in the world there will be occasions where a flexible working request, which may look perfectly reasonable on paper, cannot be accommodated and is refused.
- Different types of flexible working requests
- Has your employer really considered your flexible working request?
- Valid reasons for refusing a request
- Decision confirmed by your employer
- Appealing against your employer’s decision
- Failed appeal for flexible working request
- Your right to appeal
We know there are three different types of flexible working requests:-
- Company sponsored scheme
In reality, the non-statutory and company sponsored scheme requests are very similar although there are significant differences with the statutory request. Where you are eligible to make a statutory request, your employer will need to give a written reason for refusal. The situation is different with non-statutory/company scheme sponsored requests where there is no legal obligation to give reasons for refusal.
That said, if as an employer you are looking to maintain a good working relationship with your employee, why would you not give a reason?
We often find that from relatively small companies to large internationals, there can be a reluctance to accommodate flexible working if not already commonplace in the business. This is not a valid reason for rejecting a statutory flexible working request, although unfortunately it can be for non-statutory requests.
Some of the more dismissive reasons for refusing flexible working requests include:-
- An attitude of “it will never work here” simply because it has not been tried
- Management limitations can also scupper your request due to a lack of flexibility
- Negative experiences of flexible working requests in the past
- An assumption that there are insufficient resources – when relatively little additional resources, if any, would be required
- Changes may be disruptive to the workforce
- Adopting different employment contracts may add to a manager’s workload
Therefore, as the person pushing forward a flexible working request it is your responsibility to highlight the positives. If you can change the mindset of your employer, perhaps one who has had difficult flexible working experiences in the past, you may be able to encourage them to look at your application in a different light. It also helps to put yourself in the position of your employer, being honest, what would you do if presented with your flexible working request?
Your employer is not obliged to give reasons for rejecting a non-statutory request but they are with regards to a statutory request. Some of the valid reasons for refusing a statutory request include:-
It may be that your employer is in the midst of a significant structural change in the business and an overhaul of working practices. So, you are effectively basing your flexible working request on the “old structure” which may not be compatible with future plans.
As an employee, it is very easy to become blinkered when it comes to flexible working requests and ignore any potential additional cost. Your employer has to take into account any additional costs, the potential knock-on effect to other employees and the impact this will have on the business. This is a perfectly valid reason for refusing a request, although there may still be scope for negotiation.
If your employer believes that proposed changes to your working hours would impact quality/standards this would be a serious consideration. First and foremost, the impact on the business must be the first consideration. If this was deemed to be detrimental overall then it would be commercial suicide to take on the changes.
There are some situations, such as job sharing and reduced hours, where your employer may be forced to recruit additional staff. If the quality of staff, or the value for money, was not available it would be difficult to justify approving your flexible working request.
The key to a successful flexible working request is to highlight improvements in productivity and output. If your proposed changes were potentially detrimental to productivity and output, it may be sensible to withdraw your request. While employees do have an array of legal protections, there also needs to be a consideration for the wider impact on the business.
When pursuing a flexible working request, the support of your colleagues and management can make a huge difference. On occasion, the impact on your colleagues may be seen as detrimental and your employer may have difficulties reorganising existing staff to accommodate you. In this scenario, it is difficult to justify making changes for one employee to the potential detriment of many others.
A well-run business will be both financially prudent and highly productive. Cash flow is very important to the long-term success of any business as is meeting customer demand in full. Therefore, even the slightest tweak in your working hours could have a knock-on effect elsewhere and impact your employer’s ability to meet customer demand. It is only fair that the long-term security of the business is considered first and foremost. After all, if the business was to fail as a consequence, you would not even have your flexible working hours to fall back on.
There are many businesses which operate in a daily time-frame which suits their customers, such as investment advisers and those in the education business. Therefore, switching resources to hours outside of their “traditional market” could leave your employer struggling to find sufficient work to suit your new hours.
This is just a relatively small selection of the reasons why your employer may refuse, or ask for revisions, to your flexible working request. These are points which are also acknowledged by the conciliation service ACAS.
It is good practice for your employer to inform you in writing of their decision regarding your flexible working request. This ensures minimal misunderstanding and confusion and also allows your employer to set out the reasons for refusing your request. These reasons must not be of a discriminatory nature otherwise this may open the door to legal action against your employer.
At the same time as informing you of their decision, your employer should set out the formal appeals procedure. While considering the process, it is important to realise the right to have your request considered is very different to entitlement. While all statutory requests should be considered on their merits, this does not force your employer to approve any request.
The only type of request which includes a formal right to appeal is a statutory flexible working application. Your employer is obliged to give you the opportunity to discuss your request in more detail and perhaps look at a compromise. There are a number of genuine reasons why you may want to appeal:-
- You believe your employer has misunderstood your legal rights regarding statutory flexible working requests
- Your employer has failed to follow their own internal procedures
- You have new information which may prompt a rethink by your employer
- The potential benefits of your proposition have not been appreciated in full
There are genuine occasions where your employer has simply misunderstood the process, or the benefits of your request. As with your original request, you may be able to take a third party into an appeals meeting as support or a simple observer.
It is certainly not beyond the realms of possibility that your employer may reconsider their position after your appeal. If they then agree to your flexible working request, the decision should be communicated in writing. In the event that your employer does change their mind, it is advisable to act quickly to bring the process to a swift close – switching to your new working hours as soon as possible.
For many people a failed appeal might be the end of the road but this is not always the case. If you believe there has been a genuine error or your request has not been considered on its merits, you can take the issue further. However, before doing this, it is advisable to consider the impact this may have on the long-term relationship with your employer.
Additional options include:-
- Raising a formal grievance with your company
- Using the facilities of a reconciliation service such as ACAS
- Taking your employer to an employment tribunal
- Lodging a claim for discrimination
- Making a formal claim for unfair/constructive dismissal
There are a number of issues to take into consideration at this point. First of all an employment tribunal would require both parties to have engaged in a form of additional negotiation before taking this step. Failure of either an employer or an employee to engage in additional negotiation would not be looked on favourably by an employment tribunal. There is also a time limit when taking your employer to a tribunal/reconciliation, three months less one day from the date when:-
- Your request was incorrectly refused
- You encountered discrimination
- A process of constructive/unfair dismissal began
Unfortunately, if you’re flexible working request was to progress to an employment tribunal, this would likely result in long-term damage to your working relationship with your employer. This does not mean that your employer could treat you differently but your relationship could be strained at best.
Thankfully, you may be able to take further action if your request has been refused. The majority of flexible working requests refused do not progress to an employment tribunal and negotiation will often result in a compromise. That said, if you believe that your legal rights have been infringed or you have experienced discrimination/a form of constructive dismissal then you can take the issue further. Quite what this would do to your working relationship with your employer, and how this may impact your future, would be difficult to predict with any certainty.