Flexible working - taking action
Not every request for flexible working will succeed. Sometimes, your employer's refusal will be perfectly reasonable and valid - your request has been considered carefully and reasonably, and it simply isn’t possible to accommodate the changes you have asked for without a negative effect on the business. Don't forget that your right to work flexibly and your employer's right to manage their business must be balanced. Just because you are unhappy with a decision doesn't mean it's unlawful.
However, there are other occasions when you may be able to take further action. This page tells you when you might be able to do this and what action you can take.
Can you take any action?
You may be able to take further action if, for example:
- you have had a perfectly reasonable and workable request rejected out of hand
- you have tried to use the statutory procedure and your employer has ignored or mishandled it.
If you made a statutory request, and your employer has ignored it or has not followed the statutory procedure properly, you may be able to make a claim to an employment tribunal under the rules for the statutory procedure.
If your employer has ignored your request, mishandled it or refused it, you may have a claim for direct or indirect discrimination - check if it counts as discrimination.
Before making a claim to an employment tribunal, you may want to consider arbitration to try to resolve the problem without taking legal action. If you choose this option, you need to make sure that you don't miss time limits for making a tribunal claim if arbitration is unsuccessful.
Acas Arbitration Scheme
You should think very carefully before agreeing to use the Acas flexible working arbitration scheme. This is because if you choose the scheme, you won't have the right to go to an employment tribunal if you don't agree with the outcome of arbitration. You may need specialist advice on whether or not this is the best option for you .
The scheme is voluntary and both you and your employer must agree to take part. It applies only if your employer hasn’t followed the statutory procedure or has rejected your request on incorrect factual grounds.
If you have, for example, a sex discrimination claim as well as a flexible working claim, you will have to take the discrimination claim to an employment tribunal.
If you want to use the flexible working arbitration scheme, you must choose it within three months of the date on which your employer told you they refused your request, or, in the case of a breach of the procedure, within three months of that breach.
The arbitration takes place in private at an agreed venue, for example, an Acas office. Unlike the employment tribunal hearing, the arbitration hearing and its outcome are private and confidential.
The awards made under the scheme are the same as those in an employment tribunal. If your employer doesn’t comply with an award, you will have to bring a claim in the employment tribunal as if it had been ordered by the tribunal in the first place.
Making a claim to an employment tribunal because your statutory request has been refused
The only circumstances in which you can bring a claim to an employment tribunal under the rules governing flexible working requests are if your employer has refused your request by:
- failing to comply with the procedural rules on how to handle your request, for example, they did not make a decision within three months or the reason given for the refusal is not one of those permitted under the Employment Rights Act 1996; or
- rejecting your application on the basis of incorrect facts
- treating your request as withdrawn when they weren’t entitled to do so
- claiming you have suffered a detriment or been unfairly dismissed because you asked for flexible working or because you made a claim to the employment tribunal in relation to a flexible working request.
The tribunal's role is merely to verify that your employer has followed proper procedures and examine any disputed facts. Tribunals do not have the power to question the commercial validity of the employer's decision or to substitute their own judgments on business reasons for those of your employer.
If a tribunal finds that your employer's refusal was not justified, it will make a declaration to that effect and may also order your employer to:
- reconsider your request
- award you compensation of up to eight weeks' pay.
The week’s pay is limited to £538.
You should raise a grievance before making a tribunal claim if there is time to do so within the time limit for making a claim.
If you want to make a claim to an employment tribunal, you should contact Acas to start the early conciliation process and seek advice as soon as possible as very strict time limits apply.
You may also be able to make a discrimination claim or a constructive dismissal claim.
Claiming constructive dismissal
You could try to argue that your employer's refusal to grant flexible working effectively means you can no longer do your job. You may therefore be able to claim constructive dismissal. It is extremely difficult to prove constructive dismissal and you may be better off trying to make a discrimination claim.
Protection for employees who have requested flexible working
Right not to suffer a detriment
Unfortunately, it's possible that if you try to ask for flexible working your employer may try to punish you or treat you less favourably just because you have asked. This is called suffering a detriment. You mustn’t suffer any detriment because you have changed or sought to change, or have brought proceedings as a result of trying to change, to a flexible working pattern.
Right not to be unfairly dismissed
If you are dismissed because you sought to change, or have brought proceedings as a result of trying to change, your working arrangements, you shall be treated as having been automatically unfairly dismissed, because you have been dismissed for trying to assert a statutory right. Your employer will not be able to claim it was reasonable to dismiss you. You don’t have to have worked for your employer for any length of time to claim automatic unfair dismissal.
You may also be able to make a discrimination claim.
Other useful information
Acas Arbitration Scheme - www.acas.org.uk.