Can my job role be changed to prevent flexible working?

In summary, the law on flexible working is as follows:

Employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. If they do so:

• The employee triggers the procedure by making a written request. The employer then has the three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome.
• The employer must deal with the application in a reasonable manner.
• The employer can still only refuse a request for one (or more) of the eight reasons set out in the legislation (I will deal with these in more detail below).
• The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose. Similar provisions apply in respect of a meeting to consider an employee’s appeal against the rejection of a request.
• The employee can complain to a tribunal if the employer:

• • fails to deal with their application in a reasonable manner;
  • fails to notify them of the decision on their application within the decision period;
  • fails to rely on one of the statutory grounds when refusing their application;
  • bases its decision on incorrect facts; or
  • treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

• Only one request can be made in any 12-month period

Your employer does not have to agree to your request for flexible working, but they can only refuse on one or more of the following grounds:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; or
• planned structural changes.

From the information you have outlined, it would appear that your employer is looking to rely on the “planned structural changes” refusal. This reason applies where, for example, an employer intends to reorganise or change its business and considers the flexible working changes may not fit with these plans. If the employer has plans to make such changes it is good practice to share these with the workforce because doing so could help the employer see opportunities through flexible working to make the business more effective.

In selecting the ground for refusal the wording of the statute suggests that the test is a subjective one on the part of the employer. This means that if the employer considers that one of the grounds applies, then the test is satisfied. The test does not, on the face of it, import any question of reasonableness into this decision-making. As such, assuming one of the eight reasons is given (as is the case here), you can only challenge your employer’s decision if your employer’s view is based on incorrect facts. In order to give full advice I would need to know more about the planned structural changes and would suggest that you request more information from your employer with regard to these.

There is no longer any statutory requirement to include a “sufficient explanation” as to why the particular ground applies and the Acas Code is silent on providing reasons for rejecting a request. However, the Acas Guide suggests that the employer’s consideration of requests should be objective. Further, employers should consider whether an explanation would be both beneficial to the employee and support its decision, particularly in the event that the employee wishes to appeal (which the Acas Code suggests they should be permitted to do) or if the employee challenges the employer’s decision by bringing tribunal proceedings, for example, for sex discrimination.

It has previously been suggested that the statutory right to request flexible working lacks teeth because tribunals can only scrutinise employers’ decisions to a limited extent and can only make very low awards of compensation.

An employee who has made an application under the statutory procedure may bring a claim on the basis that:

• The employer failed to deal with their application in a reasonable manner.
• The employer failed to notify them of the decision on their application within the decision period.
• The employer rejected the application for a reason other than one of the statutory grounds.
• The employer’s decision to reject the application was based on incorrect facts.
• The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.

A tribunal cannot question the commercial rationale or business reasons behind an employer’s decision to refuse a request. Neither can a tribunal substitute its own decision as to whether the request should or should not have been granted. This severely restricts the scrutiny to which an employer’s decision may be subjected.

Essentially, the tribunal’s role is restricted to:

• Reviewing the procedure followed by the employer.
• Considering whether the request was taken seriously.
• Considering whether the decision was based on correct facts.
• Considering whether the reason given falls within the permitted grounds (as outlined above)

Alternatively, few cases seem to have been brought in which a claim for breach of the statutory right to request flexible working has not been accompanied by a claim of direct or indirect sex discrimination. For women, this has proved a most effective remedy. I would need more information in order to advise further on this however. Please note that there are time limits and court fees should you decide to issue a claim and you may wish to speak to ACAS in the first instance.

The information and opinions within this article are for information purposes only. They are not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.

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