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to attend both this and one rearranged meeting without good reason, the Code says the employer can consider the request withdrawn.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 an employee’s flexible working 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 usually makes sense for a member to suggest a trial period which they can use as 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 based on “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 (see Chapter 7). In addition, 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 equivalent full-time workers. Any difference in treatment must be capable of objective justification to avoid breaching the Part Time Workers Regulations 2000 (see page 47).


Whereas only employees can request flexible working, all workers, including agency workers, are protected by the equality laws in the EA 10 (see Chapter 7). The best way to implement a flexible working policy (including requests to work from home) is to start with an equality impact assessment, carried out in consultation with the recognised union, and then to devise a policy taking into account the employer’s statutory duties, and the results of the impact assessment and consultation. Public sector employers (and private sector employers when carrying out public functions) must also comply with the Public Sector Equality Duty (see page 250). 


A policy that prioritises the needs of employees with caring responsibilities or disabilities over those of other employees is likely to be lawful, as long as the employer retains the flexibility to look at each case on its merits, especially if the policy is based on a thorough impact assessment and follows proper consultation. 


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 Early Conciliation Notification Form 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 (www.acas.org.uk/media/pdf/s/7/The-right-to-request-flexible-working-the-Acas-guide.pdf). 


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).