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Flexible working: the right to request and the duty to consider. Part 2

URN No: 07/1390/A2

Considering a request – reaching a decision
Exceptions to the procedure and withdrawals
Unresolved applications

Considering a request – reaching a decision

Once the employer and the employee have discussed the request, the employer must notify the employee of the decision in writing. Notification must take place within 14 days following the date of the meeting. This section describes the steps that need to be taken whether the application has been accepted, remains unresolved or has been rejected. An application may only be refused where the employer has a clear business reason for doing so. Acceptable business reasons are listed in this section.

How should an application be accepted?

When accepting a request the employer must write to the employee:

• detailing the new working pattern;
• stating the date on which it will start, and
• ensuring the notice is dated.

Form FW(B): Application acceptance form (see Related Documents) can be used to confirm a new working pattern. The agreed new working pattern will be a permanent change to the employee’s terms and conditions of employment, unless agreed otherwise.  Where a trial period or time-limited period has been agreed this should also be detailed in the written notice.  When implementing the new working pattern other factors that the employer should bear in mind are detailed below.

If the employer needs more time to come to a decision, they must obtain the agreement of their employee for an extension to the 14 days in which to inform them of the decision following the meeting. In these circumstances the proposal for an extension is likely to be in the employee’s interests and the employee should be open to such requests. For example, following the meeting, the employer is willing to agree to the request in principle, but needs more time to look into certain aspects of the proposed new working pattern. This could occur where an alternative working pattern was identified during the meeting. In such circumstances, the employer will need to agree with the employee an extension of the time limit to deal with the request. This is covered more fully in Exceptions to the procedure and withdrawals.

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Would a trial period help?

Trial periods can help both employees and employers because they provide an opportunity – without commitment - to test a particular working pattern to see if it works out to the satisfaction of both.  An employee may, for example, be concerned about making what will be a permanent change to his or her contract of employment, while the employer might have concerns about the potential impact of the proposed change in the employee’s working pattern on the business.  A trial period of, say 12 weeks, will give both the employee and the employer a chance to find out whether the chosen pattern of working will really work out well in practice. 

How would a trial period work in practice?

Trial periods can potentially happen at two stages before a formal agreement is reached:

• Firstly, the employer could give informal agreement to a trial before a formal flexible working request has been made by the employee; if this happened, the formal procedure would still be available to the employee if they wished to use it at some stage in the future;
• Secondly, if a formal application is made, an extension of time for the employer to make a decision (see Exceptions to the procedure and withdrawals) could be agreed and the trial period could happen before a final agreement takes place; in this case the rest of the formal procedure would still be available to the employee. 

Would a temporary period of working flexibly be appropriate?

In some circumstances, particularly where caring for an adult is involved, a permanent change to an employee’s contract of employment may not be the best solution for him/her.  Where, for example, an employee suddenly becomes the carer of an adult with a terminal illness, the employer might consider that a temporary period of flexible working, agreed informally outside the formal procedure, might be appropriate.  Alternatively the employer and employee might agree to a time-limited change after which they would revert back to the original pattern.

An informal temporary arrangement might also be more appropriate where the demands on an employee’s time are unpredictable, for example if caring for someone with a fluctuating condition like Parkinson’s Disease.

How should an application be declined?

There will always be circumstances where, due to the needs of the business, the employer feels they are unable to accept a request.  Form FW(C): ApplicationRejection Form (see Related Documents) is provided for refusing the request. In all such circumstances, the employer must in writing:

• state which of the listed business ground(s) apply as to why the request cannot be accepted;
• provide an explanation of why the business reasons apply in the circumstances;
• set out the appeal procedure; and
• ensure the written notice is dated.

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What is a business ground?

An application can be refused only where there is a clear business reason. The business ground(s) for refusing an application must be from one of those listed below. 

How should the refusal be explained?

In addition to providing a specific business ground the employer must include an explanation about why the business ground applies in the circumstances. Experience shows that an employee who understands why a business reason is relevant will accept the outcome and be satisfied that their application has been considered seriously, even if they are disappointed that their application has been refused. It also shows that the reverse is true, particularly if the explanation is not sufficient for understanding.

The explanation should include the key facts about why the business ground applies. These should be accurate and clearly relevant to the business ground. To prevent any uncertainty, the explanation should avoid the use of unfamiliar jargon and should be written in plain English.

An explanation of around two paragraphs will usually be sufficient, although the actual length of explanation necessary to demonstrate why the business ground applies will differ depending on each individual case.

An example might be a manager in a small firm manufacturing curtains who receives a request from an employee to not work on Thursdays. The manager rejects the request, as the weekly fabric delivery is received on Thursday, and preparations begin for the following day’s despatch of customer orders. The explanation might say:

‘I am sorry that I cannot grant your request to change the days that you work, but to allow you to not work on a Thursday would have a detrimental effect on the performance of the business.’

Thursday is our busiest day of the week, when all staff are required to ensure that the machinists can continue making curtains while stock is received, and finished curtains are packaged ready to be despatched the following morning. You are aware that on a Thursday morning we receive our weekly delivery of fabric. This requires the involvement of all staff to help move the material from the delivery bay into the storeroom, before the newly made curtains can be prepared for despatch the following morning.’

As I indicated when we met to discuss the application, if you decide to change the day you would prefer not to work to one earlier in the week, then I would be happy to reconsider your application’.

Any facts quoted in the explanation must be accurate. It is not a necessity for the employer to provide the detail in the explanation, but they should ensure that they are able to back up any facts should they  subsequently be disputed. A decision based on incorrect facts to reject an application would provide an employee with a basis to make a complaint to an employment tribunal.

Under the flexible working legislation, a tribunal does not have the power to question the employer’s business reasons for declining a request nor is it allowed to consider whether or not the employer acted fairly or reasonably, but they will want to see evidence of any facts relied upon to reject the application and that the employer has provided the employee with sufficient explanation as to why the business ground applies to the application.  If, however, a case is brought jointly particularly with the Sex Discrimination Act, a tribunal is able to re-examine the business grounds.  Further information can be found in Unresolved applications and How the right works with other legislation.

Further information on when an employee may have a right to pursue their application, including making an appeal or complaint to an employment tribunal, can be found at Unresolved applicationsand How the right works with other legislation.

What happens at the appeal meeting?

It will never be possible for an employer to agree to a new working pattern in every circumstance due to the business needs of the organisation. In such circumstances, the reasoning why the request cannot be accepted should be clear to the employee from the notice of the refusal, which must include the business reason and an explanation. But there will be circumstances where the employee may believe that their request has not been properly considered and may want to appeal. The appeal procedure is summarised below.

An employee must make their appeal in writing within 14 days after the date they receive written notice that their request has been rejected. When appealing against a refused request, an employee will have to set out the grounds for making the appeal and ensure that it is dated.  Form FW(D): Flexible Working Appeal Form (see Related Documents) may be used for this purpose.

There are no constraints on the grounds under which an employee can appeal. It may be that they wish to bring the employer’s attention to something they may not have been aware of when they rejected the application, e.g. that another member of staff is now willing to cover the hours the applicant no longer wishes to work.  Or it may be to challenge a fact the employer has quoted to explain why the business reason applies.

The employer must arrange the appeal meeting within 14 days after receiving notification that the employee wishes to appeal. The employee can be accompanied by one companion. This is on the same basis as the meeting to discuss the original request and detailed in Considering an application. There are no restrictions on who should hold the appeal meeting. Experience shows that an employee is far more likely to feel that their appeal has been taken seriously when a manager senior to the one who originally considered the application hears it. This is not always necessary, nor possible for many small businesses.

The employer must inform the employee of the outcome of the appeal in writing within 14 days after the date of the meeting. Form FW(E): Appeal Reply Form (see Related Documents) has been provided for this purpose.

If the appeal is upheld the written decision must:

• include a description of the new working pattern;
• state the date from which the new working pattern is to take effect; and
• be dated.

If the appeal is dismissed the written decision must:

• state the grounds for the decision. These will be appropriate to the employee’s own grounds for making the appeal;
• provide an explanation as to why the grounds for refusal apply in the circumstances.  The same principles apply as to what is a sufficient level of explanation at appeal as the amount of explanation that should be given following the initial decision; and
• be dated.

A written notice of the appeal outcome constitutes the employer’s final decision and is effectively the end of the formal procedure within the workplace.

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What happens when the appeal meeting is missed?

The circumstance where the employee misses the appeal meeting should be handled in the same way as for an employee who misses the meeting to discuss the application, as described in Considering an application. An employee who fails to attend the meeting without notification should contact the employer as soon as possible to explain their absence. The employer should rearrange the meeting at the next mutually convenient time. An employer whose employee fails to attend a meeting more than once and does not provide a reasonable explanation may treat the application as having been withdrawn. In such circumstances, the employer should write to the employee confirming that the application was now considered withdrawn. For further information about when an application may be taken as withdrawn, see Exceptions to the procedure and withdrawals below.

Exceptions to the procedure and withdrawals

In the majority of cases, requests for flexible working will follow the procedure as laid out in the previous sections.  However, there will be occasions where it is necessary to deviate from this to help reach a suitable outcome.  This section outlines the potential exceptions to the procedure and when an application may be taken as withdrawn. In all circumstances it is essential that a written record is made.

Extension of time limits

There are two circumstances where the time limits as laid out in previous sections can be extended:

Through agreement by the employer and the employee

There will be exceptional occasions when it is not possible to complete a particular part of the procedure within the specified time limit.  For example, it may be that the employer requires extra time to speak to another employee, who is on holiday, about whether they could work the hours left uncovered by the employee’s requested working pattern.  Or the employee making the request may be going on leave and as such will not be able to attend a meeting within the time limit.  Or it may be that the employer and employee agree to an extension in order to have a trial period between the meeting and the final decision by the employer.  Such extensions of time limits can only take place if both the employer and the employee agree them. The employer must make a written record of the agreement. Form (FW)F: Extension of Time Limit (see Related Documents) can be used for this purpose.

The written record of the agreement must:

• Specify what period the extension relates to;
• Specify the date on which the extension is to end;
• Be dated; and
• Sent to the employee.

Through the employer’s absence

Where an application is sent to the manager who will deal with the application and the manager is absent from work due to leave or illness, an automatic extension applies. The period that the employer has to arrange the meeting will commence either on the day of the manager’s return or 28 days after the application is made, whichever is sooner. On a manager’s return it will be best practice to acknowledge receipt of the application so the employee is aware that the extension has been applied and the period when they can expect to meet their employer to discuss the request.

There are no other circumstances where an automatic extension to any period applies.

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When can an application be treated as withdrawn?

There will also be occasions when an application is treated as withdrawn. In all circumstances a written record must be made. Form FW(G): Notice of Withdrawal  (see Related Documents) has been provided for this purpose.

There are three reasons why an application may be treated as withdrawn:

The employee decides to withdraw the application

An employee who withdraws their application will not be eligible to make another application under the formal statutory procedure for 12 months from the date their application was made. This will therefore be a factor the employee will want to bear in mind when considering withdrawing their application. Where the employee decides to withdraw their application, they should notify their employer as soon as possible and in writing. This is essential to avoid any misunderstandings and Form FW(G): Notice of Withdrawal (see Related Documents) can be used for this purpose.

An employer who is informed verbally that the application is withdrawn by the employee but does not  subsequently receive written confirmation should contact the employee to confirm their intentions. Where the employer does not receive confirmation from the employee, the employer should confirm the withdrawal in writing.

The employee fails to attend two meetings

In cases where an employee misses two meetings without reasonable cause, the employer may treat the application as withdrawn. It is therefore in the employee’s best interests to inform their employer as soon as possible if and why they are not able to attend a meeting. For example, if an employee misses a meeting for a reason such as their child falling ill and informs the employer straight away, the employer should treat this sympathetically. However, if an employee simply misses a meeting and does not explain why, then they can expect their absence to be treated less sympathetically. The employer should warn the employee that they risk their application being treated as withdrawn if they miss another meeting without reasonable cause when rearranging the meeting.

The employee unreasonably refuses to provide the employer with therequired information

There may be occasions where the employer is willing to accept a request for flexible working, but requires the employee to provide them with certain information before they can do so If an employee unreasonably refuses to provide the employer with the information, then the employer can treat the application as withdrawn.  For example, an office worker may request to work from home three days a week and the employer may wish to ensure their working space meets health and safety standards. If the employee refuses to comply with this, the employer may treat the application as withdrawn.

What to do if you suspect an employee of abusing the right to request

Most employers recognise that it is important to deal sensitively with an employee’s personal relationships and possible caring role: being a carer of an adult, for example, can be very stressful and carers are often not inclined to talk openly about their caring role.

Employers who have reason to think that an employee is abusing the right to request, for example, if they don’t have a caring responsibility but are fraudulently claiming they are eligible, should deal with the situation according to their normal disciplinary procedures as with any right claimed by an employee.  If this were to happen, the question of evidence would be important because if the employee could, but fails to, produce any evidence in support of their assertion of their right to apply under the procedure, as with any other claim, this could be a factor affecting the employer’s decision to apply a disciplinary sanction in respect of the employee and could support the employer’s case should there later be a dispute.

However, employers should be aware that employees have a statutory right not to be subjected to detriment or dismissed for making (or proposing to make) an application for flexible working under the statutory procedure, for exercising (or proposing to exercise) a right under the statutory procedure, for bringing proceedings against the employer or alleging the existence of any circumstance which would constitute grounds for bringing proceedings under the statutory procedure.  See Protection from detriment and dismissal.

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Unresolved applications

Most applications will conclude with a satisfactory outcome either when the employer gives their decision or at appeal. But there will always be some cases, even after an appeal, where an employee feels their application has not been dealt with to their satisfaction. The employee may want to involve a third party or be thinking of making a complaint to an employment tribunal. This section outlines the options available.

Speak to the employer informally

In the first instance, it is likely to be in all parties’ interests to try to resolve the problem within the workplace. Evidence shows that the quickest and most effective way for an employee to resolve an issue is to speak with their employer.

It may be that there has been a simple misunderstanding of the procedure, which the employee believes affected the employer’s decision. If the employee feels able to discuss this with the manager, the issue may be resolved without the need to resort to more formal mechanisms. For example, where a time limit has not been met in the first instance it may be far more effective to speak to the manager and inform them that they need to reply as soon as possible due to their breach, rather than seek to pursue the matter to an employment tribunal.

Employer’s own grievance procedure

Many employers have their own grievance procedure, which the employee might use to seek resolution of their complaint. Again, this has the advantages of being far quicker than looking to involve external parties and allows the issue to be resolved at the workplace.

Third party conciliation/mediation

Despite the best efforts of both parties there will be cases where it may not be possible to resolve a disputed request at the workplace, but neither is there a desire to pursue the application through a formal avenue such as an employment tribunal. In such circumstances, both parties can agree to try to resolve the issue through the use of an external third party mediator or conciliator. This might be someone from Acas, a union representative, or another person with appropriate expertise, perhaps known through the local Business Link organisation. The purpose is to try to resolve the case in an informal fashion instead of immediately resorting to the more formal route of external arbitration or making a complaint to an employment tribunal.

The third party will tend to contact the employer and employee and attempt to resolve the problem through discussion. They will talk through the issues surrounding the problem, outline the law relating to the case where necessary and generally help parties become aware of the options open to them.

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External parties providing the remedy

If a dispute cannot be resolved between the parties in specific circumstances the case can be heard by an external body who can provide a remedy to the disagreement: either an employment tribunal or through the Acas Arbitration Scheme.

In what circumstances can a formal complaint be made?

An employee may make a complaint to an employment tribunal or Acas arbitration where:

• the employer has failed to follow the procedure properly; or
• the decision by the employer to reject an application was based on incorrect facts.

Although a complaint can be made if the reason given by the employer for refusal is not one of the specified business grounds, an employee has no right to make a complaint where they simply disagree with the business grounds provided by the employer for declining a request. The employment tribunal/Acas binding arbitration does not have powers to question the employer’s business reasons, although it can examine the facts on which the business reason is based to see if they are factually correct.

A breach of the procedure may, for example, be a failure to hold the meeting to discuss the application within the timescale (where no extension has been agreed) or where the employer fails to provide all the necessary information in their notice to the employee of their decision. Missing a deadline as laid out in the procedure by one day will technically constitute a breach, although in the vast majority of cases where this is simply an accident the problem should be resolved at the workplace.

Equally, it is important that the employer ensures that facts provided to explain why a business ground applies are correct. While a tribunal or arbitrator has no power under the flexible working legislation to question the employer’s actual business grounds for declining a request, any rejection based on incorrect facts will provide a basis for making a complaint. Where an employee suspects that a fact is incorrect they must first raise this at appeal.  For example, an employee may appeal by arguing against the employer’s grounds that there is no-one else to provide cover in their absence, which if not addressed by the employer at appeal could be a basis for making a complaint to a tribunal or arbitrator. Apart from breaches of procedure relating to the failure to meet deadlines in respect of the meeting to discuss the application or the appeal hearing; or to give notice correctly of the decision on the application or on appeal, the employee cannot make a complaint to an employment tribunal unless they have received notification that their application has been rejected on appeal.

If an employee decides to ask for their case to be heard by an employment tribunal, it may also be possible to bring the case under the Sex Discrimination Act (SDA).   The SDA prohibits direct and indirect sex discrimination.  In dealing with requests for flexible working, indirect discrimination is more likely to occur.  Further information is available in How the right interacts with other legislation and from the Women and Equality Unit at the Department for Communities and Local Government.

Re-examination of the business grounds

It is worth noting that if a case is brought jointly with other legislation, e.g. the SDA, an employment tribunal may seek to re-examine the business grounds. This is due to the fact that other legislation requires business cases to be objectively justified or to be within a range of reasonable responses. The fact that an employer has sought to establish a business case, and has held meetings under the duty to consider, should help, for example, in establishing whether the decision could be objectively justified.

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Remedies and compensation

An employment tribunal or Acas binding arbitration, which finds in favour of the employee, will be able to order the employer to:

• reconsider an application by following the procedure correctly; and/or
• pay an award to the employee.

The level of compensation will be an amount that Acas or the employment tribunal feels to be just and equitable in all the circumstances, limited to a maximum amount.  The maximum level is eight weeks’ pay. The week’s pay itself will be limited to the maximum provided under Section 227 of the Employment Rights Act 1996. This is reviewed annually and at 1 February 2006 was £290.

In addition, where an employer is found to have prevented the employee from being accompanied either at the meeting to discuss the application or appeal meeting they may make a separate award of up to two weeks’ pay. Again, the week’s pay is capped, as set out above.

What is an employment tribunal?

Taking a complaint to an employment tribunal is always a last resort. A tribunal is a formal, legal, public hearing and generally has three members. The ‘Chairman’ is legally qualified and there are two lay members drawn from people dealing with work-related problems.

The complaint should normally be made within three months of the breach of procedure, or of the detriment or dismissal. Where the detriment is suffered due to the employer’s failure to act, the complaint should be made within three months of the failure to act.  An extension to this time limit can be granted only in exceptional circumstances, where the employment tribunal is satisfied that it was not reasonably practicable for the complaint to have been made earlier. An employee wishing to bring a claim of detriment or unfair dismissal in connection with an application for flexible working would need to follow the statutory grievance procedure before bringing a claim in a tribunal.

An employee who wishes to make a complaint to an employment tribunal should obtain a copy of the explanatory leaflet How to apply to an employment tribunal which contains a copy of the application form ET1. The leaflet explains the procedure and gives the address of the employment tribunal office to which the completed form should be sent. The booklet is available from Jobcentre Plus/Social Security offices, Citizens Advice Bureaux, from DTI Publications Orderline on 0870 1502 500, or from the Employment Tribunals Service website (www.ets.gov.uk).

When the employment tribunal office receives the completed form, it will send a copy to a conciliator at Acas who will try to help the two sides to reach a settlement of the complaint.

If the conciliation is not possible or fails, the employment tribunal will hear the case and both parties should attend the hearing. They may claim travelling expenses and other expenses within certain limits.

What is the Acas Arbitration Scheme for flexible working?

The Acas Arbitration Scheme provides an alternative to going to an employment tribunal hearing in order to discuss a case relating to flexible working. It provides employees with a choice to having their complaint settled at tribunal, as some people find employment tribunals have become too legalistic, costly and time-consuming.

Use of the scheme is entirely voluntary and both the employer and the employee must agree to the dispute going to arbitration. Where both parties agree to use the scheme, the decision of the arbitrator is binding and the employee waives their right to go to an employment tribunal. The basis for making a complaint to the scheme, and potential remedies available, including compensation, is exactly the same as they are at an employment tribunal. For more information on the scheme please see www.acas.org.uk

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The following table provides a breakdown of the main differences between the Acas Arbitration Scheme and an employment tribunal hearing:

How to decide whether to use an employment tribunal orthe ACAS scheme

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