What are the risks of refusing a flexible working request?

A flexible working request is any request by an employee to change their working pattern, including a change of location (for example, working from home), a different start or end time, or moving from full-time to part-time.  Currently, many employees are re-thinking how they manage their work-life balance and are making flexible working requests. While in some cases employers may be happy to vary their employees’ working patterns, some may be wondering if they have to accept each employee’s flexible working request. Our Employment Law team today discusses the risks of rejecting a flexible working request and suggest steps to take before making that decision.  

Reasons for refusing a statutory flexible working request

Under the Employment Rights Act 1996, employees with at least 26 weeks’ continuous service have the right to make a flexible working request. The Act also states eight business reasons for which employers may refuse such requests. These are:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise 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; and
• planned structural changes.

If you deny a flexible working request, you must be able to justify it using at least one of the above reasons.

What claim could an employee bring if I refuse a flexible working request?

An employee may be able to file a tribunal claim where you have refused their flexible working request without following a proper procedure. Under the Employment Rights Act, your employees may bring a claim if you:

• fail to deal with their application in a reasonable manner;
• fail to notify them of the decision within the decision period (three months beginning from the day the employee made their application);
• rejected their application for a reason other than the statutory reasons listed above;
• based your decision on incorrect facts; or
• treated the application as withdrawn when not entitled to do so.

If a claim is brought on one of these grounds, the tribunal cannot question the business rationale for your decision or substitute its own decision. The role of the tribunal in this situation is to consider the facts and decide whether you followed a proper procedure and seriously considered the application.

If a tribunal finds that you have not followed the correct procedure or the decision was not based on correct facts, it may order you to reconsider the request and may also award the employee up to eight weeks’ pay as compensation.

What discrimination claims could arise from refusing a flexible working request?

Employees who possess a protected characteristic may be able to bring a discrimination claim if their request for flexible working is refused. For example, refusing a disabled employee’s flexible working request may be a failure to make reasonable adjustments, and rejecting an employee’s request not to work certain days may be indirect religious discrimination if they made their request so that they could observe religious requirements.

Women who make a flexible working request in order to care for their children may be able to claim indirect sex discrimination if their request is refused. One recent example is the case of Thompson v Manors. In this case, Mrs Thompson made a flexible working request to her employer that she end work an hour earlier so that she could pick up her daughter from nursery. Her request was refused and an Employment Tribunal found she had been discriminated against on the basis of sex and awarded her nearly £185,000. This case demonstrates just how costly refusing a flexible working request can be when a tribunal finds the refusal amounted to discrimination.

Will my employee leave if I refuse their flexible working request?

Even where you have lawfully refused a flexible working request, you still run the risk that your employee will choose to leave your business. With many employers currently struggling to recruit suitable employees, some are offering flexible working as a way to entice more applicants. Your employees may choose to go to a business that will offer them more favourable working patterns.

What should I do if I want to refuse an employee’s flexible working request?

You have a statutory duty to deal with an application for flexible working in a reasonable manner. If you are reluctant to agree to an employee’s flexible working request, you should first enter into a discussion with them and try to fully understand their reasons. Give careful consideration to their request and be prepared to suggest and discuss alternatives. Allowing a trial period of the proposed arrangements can also help you assess whether they will work at your business, or provide evidence to help you justify your refusal if the flexible working arrangements are shown to be unsuitable.

If you do decide to reject the request, ensure you can identify at least one of the statutory reasons listed in the Employment Rights Act and if the employee has a protected characteristic ensure you can objectively justify your refusal as a proportionate way to meet a legitimate aim. 

If you have questions about flexible working or have received flexible working requests from your employees, you can discuss your situation with a member of the Employment Law Team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.