The decision

If the request is rejected, the Code says the employer should allow an appeal.

Where an employer arranges a meeting to discuss the application or any appeal and the employee fails to attend both this and one rearranged meeting without good reason, the Code says the employer can consider the request withdrawn.

The Acas guidance suggests trialling a flexible working proposal where an employer is unsure of its business impact. In any event, says the guidance, joint periodic reviews of new arrangements are sensible to see how they are working out. It is a good idea for the employee to suggest a trial period, so that the proposed new working pattern, and the employer’s reservations, can be properly tested against the eight business reasons.

The guidance looks at how to handle multiple requests, and suggests that where an employer has already granted one request, the impact of that first request on the business can be taken into account when considering later requests by other employees, effectively on a “first come first served” basis. Specifically, it says: “When an employer receives more than one request, they are not required by the law to make value judgments about the most deserving request. An employer should consider each case on its merits, looking at the business case and the possible impact of refusing a request”.

Where several employees already work flexibly and more flexibility could impact adversely on the business, the guidance says it would be “good practice” to call for volunteers to modify their existing contractual working pattern to create capacity for granting new requests.

Employers must ensure they do not discriminate unlawfully. When approaching the new flexible working regime, employers must remember that the majority of carers are female, and that many, as TUC research has shown, are over 50. A reasonable agreed procedure under the new statutory flexible working regime could still prioritise requests by staff with caring responsibilities, provided the procedure makes it clear that exceptions can be made. An employer that fails to take into account the particular needs of staff with caring responsibilities when developing and implementing a flexible working procedure risks a claim for indirect sex discrimination.

Where an employee needs to work flexibly or to change their working pattern or duties because of a disability, it would be a reasonable adjustment to prioritise their request over those of other non-disabled staff (Kent County Council v Mingo [2000] IRLR 90).

Many employees with caring responsibilities already work flexibly. Unless otherwise agreed, these employees have the contractual right to continue with their existing flexible working patterns, which can only be renegotiated with the employee’s agreement. It would also be indirect discrimination to interfere with settled flexible working arrangements for carers without objective justification (see Chapter 6).

Requests by part-time workers to work flexibly must not be treated less favourably than requests by equivalent full-time workers. Any differences in approach must be capable of objective justification to avoid breaching the Part-time Workers Regulations (see page 46).

A claim can be made in the employment tribunal if an employer fails to deal with a flexible working request reasonably, wrongly treats the request as withdrawn or fails to provide a final outcome within three months of the request. There is a deadline of three months to bring a tribunal claim. As always, there is a tribunal fee and the first step is to contact Acas for early conciliation within the three-month deadline. See Chapter 13 for information on Acas Early Conciliation, tribunal fees and bringing a tribunal claim.

Employees may also consider attempting mediation to solve their dispute. Mediation does not “stop the clock” on the time limit for any potential tribunal claim.

Another option is the Acas Arbitration Scheme. The outcome of arbitration would be binding. There is more information about this option in the Acas booklet Handling requests for flexible working.

Relevant law: Sections 80F-80I, ERA 96, as amended by sections 103-106 CFA 14

An employee has the right not to be victimised or dismissed for a reason concerned with a request for flexible working (sections 47E and 104C, ERA 96).