Flexible working turned down: ask the expert

I understand that you are contracted to work 15 hours per week over two days and this means that you currently work a Saturday plus a late shift in the week or two late shifts during the week if you do not work on a Saturday.

I understand that you recently submitted a flexible working request requesting to work two weekday shifts (6pm to 10pm) and a Saturday or, three weekday shifts (5pm to 10pm). You have offered to work any shift required during school holidays and offered to continue with your normal late shift on Thursdays and Fridays. In effect you are therefore just asking them to restrict your hours on Mondays, Tuesdays and Wednesdays. Another employee has their days restricted and does not work on Tuesdays or Thursdays.

Your flexible working application was refused on the grounds of cost and the fact that apart from Sundays, your employer cannot assign set shifts/days due to the nature of the business. You appealed, citing your colleague who does not work set week days but does not work on Tuesdays and Thursdays due to her unavailability on these days and also noting that the Company made a mistake in the outcome letter relating to you requesting a split shift on Saturdays, which was inaccurate. Your appeal was rejected for the same reasons as in the Company’s previous outcome letter.

Your employer must follow a set procedure when dealing with your flexible working application. It appears from your email that you do not have any concerns as to the procedure followed by your employer, but rather the reason used for rejecting your request and the fact that your request was rejected. Your employer may only use certain specified reasons for rejecting your flexible working application. One of these reasons is ‘burden of additional costs’, which I understand is the reason specified by your employer for rejecting your request. An explanation should also have been provided to you explaining why your requested working pattern cannot be accepted on the grounds of costs – why would it be costly for them to accept your request? It is not clear which ground they are citing in relation to the inability to assign set days or shifts. This should have been explained to you.

Provided that the procedural requirements have been complied with, you can only then bring a claim against your employer in the Employment Tribunal on two limited grounds under the flexible working regulations: (1) that the refusal was based on grounds not in the permitted list of grounds – this may apply to you as it is unclear what one of the grounds was; or (2) that the decision was based on incorrect facts. I understand that as part of the outcome letter, your employer stated that apart from Sundays, the colleague you mentioned as having set shifts does not have set shifts. However, she cannot work on Tuesdays and Thursdays. You have asked for a similar restriction. Also, your hours have already been set in that you always work either a Saturday and one late shift or you work two late shifts. There may therefore be an argument that the decision has been based on incorrect facts.

In addition you may have a claim for sex discrimination. You would argue that your employer has put in place a provision, practice or criterion that puts women at a particular disadvantage i.e. they have a rule that shifts can not be restricted to certain days and this rule disadvantages more women than men because women are the main carers for children. You may also decide to resign with immediate effect and claim constructive unfair dismissal as a result of the way you have been treated, but please do not take this step without taking further legal advice.

You could choose to submit a grievance setting out the reasons why you are unhappy with your employment situation and the way in which your employer has handled your flexible working request. If your employer’s response does not provide you with a workable solution, then you may at that stage decide to resign with immediate effect. Bear in mind, though, that you only have three months to submit a claim in relation to the refusal of your flexible working request. The time limit would run from the date you were notified of the appeal decision for the flexible working claims and would run from the date of the original decision to refuse your request for the sex discrimination claim. If you are thinking about submitting a claim you should therefore obtain legal advice as soon as possible.

Regarding your working hours, the hours that you are required to work for your employer will depend on what has been agreed between you and your employer in your contract of employment. Your contract of employment can be written or an oral agreement, or a mixture of the two. I understand that your contract states that you will work 15 hours over two days per week but that you verbally agreed your shift pattern on recruitment and you have been working this shift pattern ever since. It is not clear from your email how long you have worked for your employer. If your employer is changing your contractually agreed hours without your agreement, you could have a claim for breach of contract if you suffer loss as a result of the change and also for sex discrimination if the reason for the unilateral change is sex.

On the other hand, if you are unable to comply with your contractual hours and you have not agreed a variation to your contractual hours with your employer, your employer may be able to demonstrate that it has a fair reason to dismiss you. I would therefore advise you to take further legal advice if your employer attempts to change your working hours without your consent. We would then need to review your contract of employment in order to advise you on next steps.

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• Flexible Working Shift work Employment law