I’m currently just finishing my maternity leave. Before I went on maternity leave I asked for a pay rise as I felt my pay didn’t reflect my job role or experience. On a KIT day I mentioned to my manager that I planned on making a flexible working application so she asked me to come back for a meeting where we discussed it and she asked me to put my application in. I also asked if a decision had been made about my pay rise and she said this would be discussed with the finance director at the same time as my flexible working application. My manager then called me in for a formal meeting to discuss the application where the only point she brought up was that I had stated ‘I could do all my jobs but wouldn’t have as much time free to be able to help her with her jobs’. Two weeks after this meeting she called to let me know my application has been declined on the grounds of ‘planned changes in the Financial Accounts Department’. This ‘department’ is only made up of her and me. I’ve requested the changes in writing which I’ve now received and the changes seem to only be that my job title has changed from Assistant Financial Accountant to Financial Accountant and my pay grade has increased (I’m guessing this has come about from my request for a pay rise). The job description looks virtually the same as my current role. However, there is now an added job of basically helping her out (which was what she was querying in the meeting). Can they do this? She looks as though she’s taken what I’ve said in my flexible working application and hasn’t been happy that I’ve said I can’t help her with her work as much and has changed my job to include this which is the reason my application has been declined.
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:
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:
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:
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:
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.