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Flexible working turned down due to restructure: ask the expert
I have just returned from maternity leave and my employer has rejected my flexible working application due to planned structural changes, stating that they are unable to agree any form of flexible working at this time due to the restructure. The restructure is currently very high level with new Directors being appointed and then other changes will filter down. A major part of my role is to produce reports and while they are unable to tell me at the moment where my role will sit in the restructure it is imperative that these reports continue to be produced so I cannot see that my role can change a great deal. We have also been told that it is unlikely anybody’s role will be changing and it was more likely that the only change we would see would be to our reporting Managers. They have said that we should have a better idea of the new structure for the team in the next few month. I have 14 days to appeal, but is there any way I am able to delay my appeal until I know categorically what is going to be happening with my role? If not are they able to reject my appeal by saying they simply cannot consider any form of flexible working at this time?
As a bit of background, since 30 June 2014 any employee with at least 26 weeks’ continuous employment is entitled to request flexible working relating to a change to the hours or times they are required to work and / or a change to the place of work (between their home and any of the employer’s workplaces).
It is quite procedural and your application must:
– Be in writing.
– Be dated.
– State that it is an application made under the statutory procedure.
– Specify the change that you are seeking and when you want the change to take effect.
– Explain what effect, if any, you think the change would have on your employer and how any such effect could be dealt with.
As only one request can be made in a 12-month period, you will need to state whether or not you have previously made an application to your employer and, if so, when.
On receiving a request for flexible working under the statutory scheme, your employer must:
– Deal with it in a reasonable manner.
– Notify you of its decision within the decision period of three months’ from the written application (this can be extended with the agreement of both parties).
– Only refuse a request on one or more of eight specified grounds – and planned structural changes are one of those grounds.
– Failure on any of the above three points can lead to an employee issuing Employment Tribunal proceedings against their employer, together with claims of discrimination where the procedure or rejection is tainted by discrimination such as on the grounds of sex.
Turning to your questions, you could speak to your employer and explain that as there should not be any changes to your role, could you agree to extend the appeal outcome when it can make more of an informed decision. Your employer does not have to agree to this, although you could argue that refusal of this extension means that your request has not been dealt with in a reasonable manner. You could also ask for a trial period of your proposed flexible working request together with review points. There is no right to a trial period and your employer does not have to provide you with one. However, again you could argue that failure to agree to this means that your flexible working request has not been dealt with in a reasonable manner.
Regarding the rejection of your request, your employer cannot simply state that it will not consider any form of flexible working, as this is not a specified ground for rejecting flexible working requests and could give rise to Employment Tribunal claims. It is, however, able to state that your flexible working request is rejected because of the planned structural changes, as this is one of the specified grounds.
If you are unhappy with the outcome of your flexible working request, you could raise a grievance and follow the internal procedure. If you wanted to take legal action, you must speak to ACAS first in order to comply with the mandatory early conciliation, whereby they try to facilitate a settlement between employer and employer. If no settlement is reached, you are issued with a certificate enabling you to issue proceedings in an Employment Tribunal. You have three months, less one day, from the date of the rejection to issue proceedings, although the clock is stopped during the mandatory conciliation process. You should take advice on the time limit within which to issue proceedings, as this can get complicated.
Where a claimant is successful with their claim, a tribunal must make a declaration to that effect and either order the employer to reconsider the flexible working request, or award a maximum of eight weeks’ compensation (although there is a statutory cap of up to £464 per week). With claims of sex discrimination, an Employment Tribunal would also award compensation for injury to feelings, and the statutory cap of the lesser of £76,574 or one years’ salary for unfair dismissal is removed where discrimination is the cause of dismissal.
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Comments [1]
Anonymous says:
I currently work 22.5 hrs as a support worker within the NHS I work flexible restricted hrs due to childcare problems I am a single mum and have no childcare over Xmas as my family live over 200 miles away . can I be made to work Xmas day when I genuanly have no childcare available for my six year old son ? Many thanks
Editor: Can you specify what your contract says about your hours? Does it say you have bank holidays off or that your hours can be subject to change or something similar? Is this because your normal days coincide with Christmas Day and you don't get bank holidays? Have you spoken about your childcare issues to your manager? Or with colleagues who might be able to swap shifts with you? If you can present your employer with a potential solution they are more likely to accept what you are asking.