Flexible request agreed then rescinded

I understand that you have made a flexible working request to change your hours. It is not clear within your enquiry the reasons stated within your request, but you have certainly triggered the company’s procedure. Your employer has a three-month decision period within which to consider your request, discuss it with you (if appropriate) and notify you of the outcome.

Your employer must deal with your application in a reasonable manner and can only refuse a request 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.

Unless your employer intends to approve a request, the Acas Code suggests that they should arrange to talk to the employee as soon as possible after receiving the written request, which I note your employer has failed to do. Your employer should have considered your request (including the benefits of your requested changes against any adverse business impacts) and confirmed their decision in writing as soon as possible after, but within three months of the date you made your request. It appears your employer has responded within the decision period.

I understand that the day after you made your request you received an email proposing a compromise. Unfortunately, this will not constitute an agreement (if your request had been accepted your employer would have to issue you with a written statement of changes to your terms and conditions within one month of the changes) and your further request may have been viewed as a rejection of the compromise offered.

Your employer has then confirmed that they cannot accommodate any changes in working patterns at this time as pressure on the business is now critical. The legislation suggests that the test for refusing a request is subjective on the part of the employer, therefore if they consider that one of the grounds applies, the test is satisfied. The test does not, on the face of it, import any question of reasonableness into your employer’s judgment. Assuming that one of the reasons listed above is given, you could only challenge your employer’s decision if their view is based on incorrect facts.

In my opinion, the reason given for refusing your request could fall under several of the potential grounds, including detrimental effect on their ability to meet customer demand, inability to reorganise work among existing staff, the inability to recruit additional staff or an insufficiency of work during the hours you have requested to work. If your employer considered that it would be difficult to share up your work, or that they would be unable to recruit new staff to cover the late hours then the test may be satisfied. Further, you have indicated yourself that the late shift is the greatest business need, so there may be inadequate demand during the morning shift and your employer may have considered that agreeing to your request would have reduced cover at peak
times.

I note that your employer received another request from your colleague the day after yours was made and that you feel your request was refused as they did not wish to act inconsistently. Requests should be considered in the order in which they are received and your employer should look at each one on its merits, in the context of its business. Moving forward, you and your colleague could request a joint discussion to see whether with some adjustment and compromise both requests could be accommodated.

I would suggest that you appeal the decision to reject your request to change your working hours, as it appears from the information supplied that you have not yet done this. An appeal meeting would provide an opportunity for a review of your request and for you to question in detail why your employer reached the decision to refuse your request (and whether the grounds for refusal were based on the correct facts). If the request was rejected for a reason other than one of the statutory grounds, or on the basis of incorrect facts, you may be able to bring a claim on that basis. The legislation does not expressly require your employer to allow you an appeal, but the ACAS code suggests that you should be allowed to do so as it may reveal new information or an omission in the procedure used when considering your initial request (i.e. the fact no meeting was held).

It may also be worth asking the company whether they would allow you a trial period on your requested hours. Whilst there is no legislation providing for or regulating trial periods, there is nothing to prevent your employer agreeing to one and this may be to both parties’ advantage.
Unfortunately, your childcare arrangements do not have to be considered in your employer’s decision, which, as set out above, should be made on the basis of any benefits and adverse business impacts. However, this is certainly something to raise in the appeal meeting as it appears as though your employer did initially confirm that you had a case for a family friendly contract.
There may be a potential claim for sex discrimination under the Equality Act 2010, which provides protection against both direct and indirect discrimination, the difference being that the legislation surrounding the statutory right to request flexible working offers little scope to consider the employers commercial rationale, whereas a claim of indirect sex discrimination considers the reason why the decision has been reached in order to establish whether the decision was or can be justified.

If you have any queries or concerns regarding a flexible working request please do not hesitate to contact me for specialist employment advice, on 0113 200 9784 or at [email protected] .

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