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.
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?
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Taking further actions after your request is refused
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.
Acas Early Conciliation
In most cases, you must contact Acas for Early Conciliation before making an employment tribunal claim. Acas does not make a ruling. Instead, it helps both sides see whether the dispute can be resolved before a claim is made.
You might contact Acas if you believe:
- Your employer failed to follow the statutory flexible working procedure
- Treated your request as withdrawn when they should not have done
- Rejected your request based on incorrect facts
- Treated you unfairly because you made the request
There are strict time limits for making an employment tribunal claim. In most cases, the deadline is three months less one day from the date the problem at work happened. You should notify Acas within the relevant tribunal time limit, as Early Conciliation can affect how the deadline is calculated.
If the dispute is not resolved, Acas will issue an Early Conciliation certificate. You will usually need this certificate before you can continue with an employment tribunal claim.
Employment tribunal
If Early Conciliation does not resolve the dispute, you may be able to bring an employment tribunal claim. However, a tribunal will not usually decide whether your flexible working request should have been accepted simply because you disagree with your employer’s business decision.
Instead, the tribunal will usually look at whether your employer followed the correct statutory process, based their decision on accurate facts, treated your request as withdrawn when they were not entitled to do so, or breached your legal rights in another way. This could include discrimination, unfair dismissal or being treated badly because you made a flexible working request.
If your complaint is upheld, the tribunal can order your employer to reconsider the request and may award compensation, depending on the type of claim.
Discrimination and unfair dismissal
If the issue involves discrimination, dismissal or being treated badly because you made a flexible working request, you may be able to bring an employment tribunal claim after contacting Acas for Early Conciliation. 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 may consider the employer’s business reasons, but it will also look at whether the correct process was followed, whether the facts were accurate and whether your legal rights were respected.
Unfair dismissal
Unfortunately, we have seen cases where individuals have been dismissed simply for submitting a flexible working request, or disagreeing with their employers’ initial decision. If you are legally entitled to make a statutory flexible working request, you should not be dismissed or treated badly because you used that right. 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.
Constructive dismissal/discrimination
Constructive dismissal and discrimination are different types of claim. Constructive dismissal may arise if your employer’s conduct is so serious that you feel forced to resign. Discrimination may arise if your request is refused, or you are treated badly, because of a protected characteristic such as sex, disability, pregnancy or maternity, religion or race.
For example, refusing a flexible working request linked to childcare, disability or pregnancy could create legal risk if the decision is discriminatory or the employer has failed to consider reasonable adjustments where required.
Fighting your corner
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 Acas Early Conciliation and, if unresolved, an employment tribunal.
These options tend to focus on the upholding of statutory rights and statutory procedures. A tribunal will not usually substitute its own business judgement for the employer’s. However, it can look at whether the correct process was followed, whether the decision was based on correct facts, and whether the employee’s legal rights were respected.