Flexible working rejected: Ask the expert

Thank-you for your question. Firstly, I assume that you have made your flexible working request
under the statutory right to request flexible working as contained in the Employment Act 2002. I assume you qualify for this right as:

- the father of a child (presumably below the age of 16 or 18 if disabled);
- with responsibility for the care of that child;
- making the application to care for your child;
- with at least 26 weeks employment with your employer before making the application; an
- having made no previous application in the preceding 12 months.

If my interpretation of your question is correct, you currently work five days a week on a “home based “contract and you work three quarters of the week in your home office. Your flexible working request was to reduce your working hours on a Monday and Friday afternoon (a 9-hour reduction in the week), but you also notified your employer that during your working hours on Mondays and Fridays there is a chance that your child will be present. I am assuming that you prepared a detailed written application which not only specified your relationship to your child and your requested change to your working hours, but also explained what effect your proposal may have on your employer’s business and your role and how it might be dealt with. Your request was rejected.

Under the law on flexible working your employer has a statutory duty to seriously consider your request. I assume that you had a meeting with your employer within 28 days of receipt of your application as required by law or that you both agreed to extend the period if you were unable to meet within that time. I also assume that as required by law your employer notified you of their decision within 14 days of the meeting.

An application can only be refused on one or more of the following grounds:

1. burden of additional cos
2. detrimental effect on ability to meet customer demands;
3. inability to reorganise work among existing staff;
4. inability to recruit additional staff;
5. detrimental impact on quality;
6. detrimental impact on performance;
7. insufficiency of work during the periods the employee proposes to work; and
8. planned structural changes.

Your employer appears to have rejected your request under reasons 2, 5 and 6. Without knowing the nature of your home-based role and the level of client liaison required it is difficult to comment on whether this refusal is reasonable. An employer can sometimes successfully argue that a role may not be suitable to part-time hours or altered working patterns.

You can appeal their decision within 14 days of receipt of this decision and the employer will need to follow a prescribed appeal procedure. You say that others have these flexible arrangements and this may be a ground for appeal.

If you are unsuccessful in your appeal the following options are available:

- you can have an informal discussion with your employer to try and agree changes to your working patterns which will be acceptable;

- you can raise a grievance through your employer’s grievance procedure that:
          
- the statutory procedure was not followed correctly or that the reasons are incorrect; and/or
- you have been treated unfairly possibly for a discriminatory reason. As a man, your employer’s decision may be Direct Sex Discrimination if your employer has given women in similar roles and jobs in your organisation similar flexible arrangements but not you. You may feel that their refusal is also based on other discriminatory reasons (age, race, religion or belief, disability, sexual orientation, transgender status). Unless the treatment is unfair for discriminatory reasons it is not necessarily illegal. You need to obtain advice based on your specific facts as to whether the refusal is discriminatory.

- you can make a claim at the Employment Tribunal for the complaints set out at points a. and b. above. There are set time limits for making discrimination and/or breaches of flexible working procedure. You need to seek formal advice to ensure your claim is filed on time.

You are protected from suffering any detriment or dismissal for making an application to request flexible working. If you believe you have suffered a detriment this is another complaint to an employment tribunal. Again, you need to seek advice based on the facts of your case before taking this action.

Prior to establishing Renton Associates Limited, Ruth Renton has many years experience of advising both employers and employees on all aspects of employment law. CIPD trained, Ruth is also an experienced employment law trainer and has written and facilitated employment law and skills training, both in-house to employers and through public seminars. Ruth is a passionate believer in training staff to manage and work within the law, helping to create a positive diverse workplace while providing a defence for employers. Approachable and articulate, Ruth has advised a broad range of clients ranging from charities and the public sector to small owner managed businesses and FTSE listed companies. Qualified since 1995, Ruth’s background is City based (Eversheds, Allen & Overy and Orchard Solicitors). As a non-practising solicitor, Ruth views herself as an employment lawyer with additional skills. Ruth is also proud to be a working mum of four kids – her biggest challenge!