While an employee’s legal rights regarding a flexible working request are relatively straightforward, there are some misunderstandings with this process. Just because you have the legal right to make a flexible working request does not mean you are entitled to have that request confirmed without question. In reality, there is a balance between the rights and the needs of an employee and the rights and the needs of the employer.
If we assume that an employer was to accept flexible working requests to the detriment of the business and the workforce, how would that pan out? First of all, this would likely seriously impact the financial strength and profitability of the business. This is a very fine line and even though you may be unhappy with the decision, this does not necessarily mean a refusal is unlawful. It may also prompt legal action from the workforce who may legitimately be able to claim discrimination in favour of one employee.
When looking at the additional options available, we have assumed that a formal grievance has had no impact on your employers’ original decision. So, what next?
The first thing to do is differentiate the rights for those eligible to make a statutory request and those who make a non-statutory request. There is a set process for a statutory request and your employer is legally obliged to give your proposal due consideration. The situation is a little different when it comes to a non-statutory request; your employer is not obliged to give any reasons if they refuse your request.
However, if your request has been refused there are five reasons why you may be able to take further action:-
- You can prove that your statutory request was not given reasonable consideration
- You can prove that your statutory request was rejected out of hand with no offer of negotiation/compromise
- The statutory request procedure was mishandled and your legal rights were infringed
- You were the subject of discrimination
- Your employer dismissed you for making a flexible working request
While many people are led to believe that rejection of your request is the end of the story, this is not necessarily the case.
There are numerous arbitration schemes such as ACAS, where third parties will consider the evidence from the employee and the employer and make an unbiased decision. There are two main reasons why you would look towards the arbitration option before an employment tribunal:-
- Your employer has not followed the statutory procedure
- Your employer rejected your request based on incorrect information/assumptions
While this is a voluntary scheme, both parties must agree to abide by any ruling. As an employee, if a ruling goes against you then this would under normal circumstances be the end of the road. However, if a ruling went in your favour and your employer failed to recognise this, there are additional options.
It is important to note that while the results of employment tribunals are normally placed in the public domain, arbitration discussions are private and confidential. There is also a time limit, three months less one day from the date your employer breached the legal protocol or refused your request on bogus grounds.
If you are having problems in the workplace, you can contact the ACAS in confidence to discuss your options.
Telephone: 0300 123 1100
Text relay: 18001 0300 123 1100
Monday to Friday 8am to 6pm
Many people might question why an employee would not bypass arbitration and go straight to an employment tribunal. This is often the cheaper and the quicker alternative to a full employment tribunal and covers statutory procedure and decisions made using out of date or factually incorrect information.
It is worth noting, if an employee or an employer refuses the offer to use services such as ACAS, this will not reflect well on the party when placed in front of an employment tribunal.
The recognised reasons for bringing a flexible working request dispute in front of an employment tribunal are relatively narrow. They include:-
- Failure to follow the legal process when considering a statutory request for flexible working – this is covered under the Employment Rights Act 1996
- Rejecting a request based upon incorrect information
- A refusal to acknowledge and reconsider your request based on up-to-date information
- Employer withdraws your request when not entitled to do so
- Protection for those who were discriminated against/unfairly dismissed in connection with their flexible working request
It is important to note that an employment tribunal is not there to change or adjust a commercial decision. Their role is to rule upon whether procedures have been followed correctly and an employee’s legal rights have been respected.
In the event that an employment tribunal upholds your complaint against your employer, there are two options. The tribunal has the power to:-
- Ask your employer to reconsider your original flexible working request in light of the ruling
- Award compensation of up to 8 weeks’ pay (limited to £544 a week)
The majority of employee/employer disputes will require the submitting of a formal complaint in order to proceed with further action. If you believe your complaint has been incorrectly dismissed or unfairly considered, you can appeal to ACAS and then an employment tribunal.
If you are pursuing a claim for discrimination or unfair dismissal, this would generally move to the employment tribunal, skipping the arbitration service. In some cases, you may be able to pursue a claim of constructive dismissal, if refusal to consider your flexible working request means you can no longer carry out your role in the workplace.
This can be something of a legal minefield, proving your dismissal was as a consequence of an unfair refusal to grant your flexible working request. The tribunal will always take into account the commercial impact your request would have on the business.
Unfortunately, we have seen cases where individuals have been dismissed simply for submitting a flexible working request, or disagreeing with their employers’ initial decision. Remember, it is your legal right to lodge a statutory or non-statutory flexible working request and you should not be intimidated or treated in a different manner because you did so. If you are dismissed for simply making a statutory request for flexible working, this is treated as an automatic unfair dismissal – strengthening your legal argument.
While there is a subtle difference between unfair dismissal and constructive dismissal/discrimination, they are treated in a very similar manner. If your employer treats you differently as a consequence of your flexible working request, this may be classed as constructive dismissal if you feel pressured to leave. While your employer may suggest that you “left of your own accord”, if you have been side-lined, treated differently (discriminated against) or not been considered for promotions, this may well infringe your employment rights under law.
Just because an initial flexible working request has been refused, and subsequent internal appeal rejected, does not necessarily mean this is the end of the road. You can then move on towards an official grievance against your company, which by law they are required to investigate and inform you of their findings. While the vast majority of flexible working requests are agreed internally, some may proceed to arbitration and even an employment tribunal.
These options tend to focus on the upholding of statutory rights and statutory procedures. It is unheard of for any outside parties to overturn or influence a commercial business decision. If the process followed was incorrect, they may be asked to reconsider with potential compensation issued to the employee. However, the courts are not there to run your employer’s business.