Rejected and in despair? Sadly it is lawful to reject a flexible working application so long as this is done on justified grounds, so what can you do if you are faced with a ‘no’? Workingmums.co.uk looks at how to appeal.
Many maternity returners look to flexible working, to make work fit in with family life and thankfully flexible working legislation allows employees to file an application requesting flexible working. Joanna Robson, employment law solicitor for Babylaw.co.uk says that the first thing to do is to be aware of the rules: “In order to be eligible to apply for flexible working, you must have been continuously employed for 26 weeks' at the time of your application.
Secondly, you are only permitted by law to make one application per twelve month period so you need to be sure what working pattern you are looking for and which will work for you in the longer term.”
The business may also have its own flexible working policy so it’s important to check out what it says. This should outline the application and the appeal process. If an employer currently uses a flexible working policy then this should be followed.
However, if they do not then the employee should be informed of their right to appeal and the process for doing so in the refusal letter.
Failure to offer the right to appeal may entitle the employee to raise a complaint in the Employment Tribunal, but as a starting point it might be worth simply raising the issue regarding an appeal with the employer.
Refusing an Application:
Laura Livingstone, employment partner for Davenport Lyons says that legislation recognises that employers are not always in a position to accommodate specific flexible working requests: “Section 80G of the Employment Rights Act 1996 sets out eight grounds for refusing to accept a request for flexible working.” These include where the employer would suffer one of the following as a result of accommodating an employee’s flexible working request:
- 1. a burden of additional costs on the employer;
- 2. a detrimental effect on the ability to meet customer demands
- 3. an inability to re-organise work among existing staff;
- 4. an inability to recruit additional staff;
- 5. a detrimental impact on quality;
- 6. a detrimental impact on performance;
- 7. an insufficiency of work during the periods the employee proposes to work.
- 8. an employer can also refuse a request because they are planning significant structural changes to the business.
For employers it can therefore be fairly straight forward to reject a flexible working request but if one or more of these grounds are not included in the refusal letter then this would be a ground for appeal.
And furthermore says Laura: “An employer would be expected to consider the broader issues beyond just these eight reasons, otherwise, a failure to properly consider an employee’s position could firstly give a ground for appeal and secondly, give rise to a claim for sex discrimination.”
If the employer does go down the route of rejecting the application then they must notify the employee in writing no later than 28 days after their request was submitted to the employer. They must also cite which one of the eight reasons they have selected as the grounds for their refusal and provide a ‘sufficient explanation’ as to why the grounds apply to the employee as well as providing the employee with details of the appeal process.
Right to appeal:
Laura says that an employee should be given a reasonable amount of time within which to appeal against the employer’s decision to refuse their request for flexible working. “This should be at least 14 days from the date of receiving the refusal from the employer within which to appeal. If given a shorter time, an employee could and should object to this.”
The employee should appeal, in writing, to the HR department or the person who deals with the grievance and/or disciplinary appeals setting out the reasons why they are appealing. The employer should then arrange a meeting with the employee as soon as practicable in order to discuss the appeal. As with other meetings, the employee should be informed of their right to be accompanied to the meeting by a work colleague, says Laura.
Putting together an appeal letter may seem daunting but employees can have their ruling overturned if they set out their case properly. Laura says that any appeal letter should set out the grounds of the appeal and not simply repeat the request for flexible working.
Laura says: “Matters to include could be that none or the wrong reason out of the eight under the Regulations had been included," i.e:
- it did not tie in with the facts;
- other employees in a similar situation have been accepted;
- the employee has not been given an opportunity to make it work by way of a trial period;
- any further justification as to why the employee’s childcare arrangements make it impossible to return to former arrangements;
- and any further evidence as to why the new arrangements may work from a business prospective.
Like Laura, Joanna says it is really important to cite any comparators there may be, so for example any colleagues who may have been granted flexible working in the past who carried out a similar role to you.
Joanna says: “Your employer should hold a meeting with you to discuss your appeal letter with you. This meeting should be arranged by your employer within a reasonable timescale and the purposes of the meeting is for your employer to gather further information from your appeal letter and to give you the opportunity to elaborate on the points raised in your appeal letter.”
Laura says that at the meeting, the employer should ensure that a senior member of staff hears the appeal. “This person should not be the person who considered the employee’s original request and should be more senior if possible. In the meeting, the employee should be given the opportunity to explain why they believe they should have been granted the right to work flexibly and to refute why the employer has refused the request. A note taker should be present and the employee would be entitled to have a copy of these notes. It might be advisable for the employee’s own companion to also take notes to ensure accuracy of the employer’s notes if at all possible,” advises Laura.
As a result of the meeting, further investigation may be required and in this case Laura advises that the person who hears the appeal should conclude the meeting and go away to make further investigations before delivering a response in the meeting.
“If the employee feels strongly that there should be further investigations made it would be advisable to raise this in the meeting before a decision is able to be taken. Once the appeal has been investigated then the employer should either hold a further meeting with the employee or write to them stating whether the appeal has been refused or accepted,” says Laura.
If the appeal has been refused then the employer must set out the reasons why the employer is refusing the employee’s appeal. And Laura says that the employer should ensure that the appeal process is dealt with ‘expeditiously’. “The outcome of the appeal must be communicated within a reasonable amount of time in writing to the employee. If the appeal is to be refused then the letter should set out why the decision was made and how the decision was reached.
“If there is a refusal of the appeal then if the employer has followed the process correctly there may not be grounds for a claim under the Flexible Working Regulations. However, a reliance of one of the eight grounds without proper consideration of individual circumstances could still give the basis for a sex discrimination claim depending on the facts.”