Flexible working turned down and ad hoc shifts imposed

I submitted my flexible working application for my return from maternity leave in September. I had been working full time up to 2014 then I had an agreement to work three set shifts. My manager finally rejected my application in January, after ignoring my follow-up email at the end of November. My application was to change my shifts but keep my hours the same. He gave me no explanation for the rejection and has offered me unfair shifts and increased my working hours and told me if I don’t accept these shifts I will be working ‘ad hoc’ as and when required with no set shifts to organise childcare. From what I’ve been reading this is all highly illegal from start to finish. I have contacted human resources, but would like to know what my rights are from here on?

I understand that you submitted a flexible working application in September 2015 and that you received a response from your employer in January 2016, rejecting your request.

An employer who receives a flexible working request  is subject to a number of legal obligations, namely your employer must : –

Deal with your application in a reasonable manner;

Notify you off its decision within the decision period, which is three months; and

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.

It appears from your email that your employer has not complied with the above requirements. On this basis, you could submit a claim to an employment tribunal on the basis that:

  1. – Your employer failed to deal with your application in a reasonable manner.
  2. – Your employer failed to notify you of the decision on their application within three months.
  3. – Your employer rejected the application for a reason other than one of the statutory grounds.

Any such claims could submitted to the employment tribunal within three months of your employer’s decision on your flexible working request and please note that you would need to go through the Acas pre-conciliation procedures before your claim would be accepted by an employment tribunal. If you are successful in your claim, a tribunal may order your employer to reconsider your request and/or may make an award for compensation of up to eight weeks’ pay. You may also have a claim for sex discrimination based on your employer’s handing of your flexible working request. Any such claim must be brought in the employment tribunal within three months of the discriminatory act and again, you must go through the Acas pre-conciliation procedures before your claim would be accepted by a tribunal.

I understand that you currently work a set shift pattern over three set shifts but that, following your flexible working application, your employer stated that you would need to increase your hours or work on an ‘ad hoc’ basis. Again, this could amount to sex discrimination, but also raises further legal issues. Depending on the terms of your contract of employment, your employer’s actions may be a breach of your contract, again entitling you to submit a claim in the employment tribunal (after following the Acas pre-conciliation procedures). Your employer’s actions may also amount to a fundamental breach of your contract of employment, entitling you to resign and claim constructive unfair dismissal. Such a claim must be brought in the employment tribunal within three months of your resignation and the Acas pre-conciliation procedures must be complied with. I would, however, always advise you to take specific legal advice before resigning from your employment.

In terms of next steps, I would strongly advise you to submit a grievance/appeal against your employer’s rejection of your flexible working request and noting your concerns about how your employer has handled the process. You should state that you feel your employer’s handling of the matter has been unfair and discriminatory. Should this not resolve the matter, I would strongly advise you to take further legal advice in relation to tribunal claims, bearing in mind the relevant time limits.

Should you require any further clarification regarding the above issues then please do not hesitate to contact Tracey Guest at Slater Heelis LLP on 0161 672 1425.

*Helen Frankland assisted in answering this question.

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