This may depend on whether your request was made formally and whether it was rejected on eligibility grounds or refused for a business reason.
Was your request made formally?
A formal request for a flexible working arrangement is one made under section 80F(2) of the Employment Rights Act 1996 (Statute). This means the request must be made by an employee and must contain some minimum information, including that it is made under the Statute.
Note: employers should also treat informal flexible working requests with care because of the close relationship between flexible working requests and other legal protections (discussed below).
If your request has been rejected on eligibility grounds
The answer may be just to re-submit the application in the form required by the Statute. Under the Statute, two requests may be made in any twelve-month period.
If, however, your employer has also refused your request for a business reason or it has acted wrongly or improperly, the answer may be to:
- submit an appeal against the decision; and/or
- consider your legal rights.
Please note, you may have less than three months to complain about this decision to an employment tribunal.
If your request has been refused
Section 80G(1)(b) of the Employment Rights Act 1996 lists the prescribed business reasons why a business may refuse such a request.
Your options will likely be similar to those above. Your employer is not legally required to facilitate an appeal but may be best advised to do so.
While considering your options, you should keep in mind that complaints to the employment tribunal must usually be made within the short three-month time period explained above.
Potential complaints to the employment tribunal
Redress under the Statute is limited. The tribunal’s role is restricted to:
- Reviewing the procedure followed by the employer.
- Considering whether the request was taken seriously.
- Considering whether the decision was based on correct facts.
- Considering whether the reason falls within the permitted grounds.
However, the statutory regime may not be the end of the story. There is a close relationship between flexible working requests and other legal protections and particularly so in relation to discrimination. For example, your request might be based on your own disability or so that you can care for a disabled dependant.
The answer to the first question above is, therefore, likely to depend on your specific circumstances. However, there will hopefully be some options for you to explore.
Labour’s plan
Labour’s published Employment Rights Bill contains a section on flexible working requests and explains that, if and when this law is introduced, an employer will only be able to refuse such a request where it is reasonable to do so in relation to one of the prescribed reasons for refusal. Watch this space!
This blog was written by Ben Lindsay, Solicitor at didlaw.
