Worried about flexible working being denied: ask the expert

There are two ways to make an application for flexible working. You can follow the formal procedure set out under statute or you can make an informal request. You refer in your query to the fact that you are going to prepare a written notice of your request and I presume therefore that your employer has a set flexible working policy/procedure which should be followed. This should comply with the statutory flexible working procedure. My advice in any event is that it is best for you to follow the formal flexible working request procedure. Your request must be made in writing and dated and must:

State that the application is being made under the statutory right to request flexible working;

Detail the changes requested and the date it is proposed that such changes should become effective;

Explain what effects you consider such change will have on the Company and how these may be dealt with;

Confirm the relationship between you and the child.

Taking your concerns into account, the best way to approach your request is to set out the above and also consider in detail the reasons why your request may be refused and to make suggestions as to ways to combat the potential problems.

There are set statutory grounds upon which your employer can refuse your application. A refusal notice must set out which ground(s) apply and provide a sufficient explanation as to why these apply. The statutory grounds are:

1. The burden of additional costs

2. Detrimental effect on ability to meet customer demand

3. Inability to re-organise 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

8. Planned structural changes

From the information you have provided, it seems that grounds 3, 5 and / or 6 would be the most applicable given the fact that many of your co-workers are working flexible hours. However, other grounds could also be relevant.

You mention that you worked from home for one day a week towards the end of your pregnancy. If this worked successfully, this is something you should focus on within your written request. For example, you could explain how you were able to keep in touch with the office, the fact that you still managed to meet deadlines, etc. The more information you provide, the more difficult it will be for your employer to successfully establish one of the business grounds. If you are flexible as to which day you would like to work from home, this would also be beneficial. You could look at the days on which your colleagues are working from home and try to avoid these days. You would therefore be able to state, for example, “nobody else within my department works from home on a Tuesday; therefore I suggest that working from home on this day would have the least detrimental effect on the business.”

With regards to the circumstances surrounding the fact that your husband has recently left you, guidance states that your employer should focus on the business needs rather than upon your personal circumstances. However, you could still mention this if you feel that your employer may take a more sympathetic view.

After lodging a formal request to work flexibly, your employer must arrange a meeting with you within 28 days to discuss the same. There are then set timescales in which he must provide a decision.

If your request is refused on one of the business grounds stated above, you will have the right to appeal. Under the statutory procedure, you must appeal within 14 days. You should also check your employer’s policy for any time limits that apply. You should refer to the reasons for refusal and try to offer counter-arguments as to how you feel that the issues could be resolved.

Whilst it is unfortunate that you have been the last to apply for flexible working, it is still a valid argument for the employer to state that there are now too many employees working part-time hours / working from home etc to be able to allow another without resulting in a detrimental impact upon the business.

If, by the end of the procedure, your request has been refused and you do not believe that the employer has properly established a business ground, you could have potential claims for constructive unfair dismissal, breach of the statutory flexible working procedure and / or sex discrimination.

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