The employer’s decision



The employer must communicate their decision to the employee in writing as soon as possible. If the request is accepted, with or without modifications, there should be a discussion as to how it can best be implemented. 



A request must be considered objectively by the employer and can only be rejected for one of the following eight business reasons (section 80G (1)(b), ERA 96):



• the burden of extra costs;



• inability to organise work among existing staff;



• inability to recruit extra staff; 



• detrimental impact on quality;



• detrimental impact on performance; 



• detrimental effect on ability to meet customer demand;



• insufficient work for the periods the employee wants to work; or



• a planned structural change to the business.



It is not enough for the employer simply to assert one of the reasons. Instead, they must investigate whether the request can be complied with, including listening to the views of the employee. Although a tribunal will not normally second-guess an employer’s assessment that a proposed working pattern would be detrimental to the business, they will expect to see the evidence the employer used to make that assessment (Commotion v Rutty [2006] IRLR 171).



The Acas guidance contains some scenario-based examples of business reasons under each category.


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to attend both this and one rearranged meeting without good reason, the Code says the employer can consider the request withdrawn.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 proposal over an agreed period where an employer is unsure of its business impact, and carrying out joint periodic reviews of new arrangements to see how they are working out. It often makes sense for a member to suggest a trial period, which offers an opportunity to show that the employer’s objections can be overcome. 



The guidance also looks at multiple requests. Here, Acas suggests that where an employer has already granted one request, the impact of the first request on the business can legitimately be taken into account when considering later requests by other employees, effectively creating a policy of “first come, first served”. Specifically, the guidance 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 suggests 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 not discriminate unlawfully in relation to requests to work flexibly, for example, by interfering without justification with existing established work-from-home or part-time arrangements, or ignoring the needs of carers when considering competing requests where this cannot be justified (bearing in mind that most carers are female) (see Chapter 7). Where existing arrangements are contractual, any change must be agreed, just like any other contract term, to avoid breaching the contract (see Chapter 3). 



Requests from part-time workers to work flexibly must not be treated less favourably than requests by comparable full-time colleagues. Any difference in treatment must be objectively justified to avoid breaching the Part Time Workers Regulations 2000 (see page 53).



Only employees can request flexible working, but all workers, including agency workers, are protected by the equality laws in the EA 10 (see Chapter 7). 



Employers can help to avoid unlawful discrimination if they base their flexible working policy on a proper equality impact assessment (EIA) and carry out full consultation, with the union where one is recognised. 


Whether or not a policy is indirectly discriminatory will depend on all the circumstances, including the make up of the workforce. Here is a recent example:


A refusal to allow part-time working was found to be both direct and indirect sex discrimination and a fundamental breach of contract in the case of Shaw v CCL Limited UKEAT/0412/16.


In Hardys & Hansons PLC v Lax [2005] IRLR 726, the Court of Appeal ruled that it was unjustifiable sex discrimination to allow an employee to job share, when the employer had failed to show that the job could not be done on that basis.


There are more examples of indirect sex discrimination in Chapter 7 on page 238.


Public sector employers (and private sector employers when carrying out public functions) must comply with the Public Sector Equality Duty (see page 280).


A claim can be made in the employment tribunal if an employer fails to deal with a flexible working request in a reasonable manner, wrongly treats the request as withdrawn, or fails to provide a final outcome within three months of the request (section 80H, ERA 96, amended by section 133,CFA 14). 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 submit an Acas EC Notification Form within the three-month deadline. See Chapter 13 for information on Acas EC, 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 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 must not to be victimised or dismissed for a reason concerned with a request for flexible working. Any dismissal wholly or mainly for this reason would be automatically unfair (sections 47E and 104C, ERA 96).