An employer who receives a flexible working request under the statutory scheme must:
- Deal with it in a reasonable manner
- Notify the employee of its decision within the three-month decision period, unless extended by agreement
- Only refuse a request on one or more of the following grounds
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work; or
- planned structural changes.
(Section 80G(1), ERA 1996.)
The Acas Guidance suggests that, following receipt of a flexible working request, it is important for employers to do the following:
- Ask for the request in writing.
- Consider the request fairly.
- Discuss it with the employee.
- Look at other options if the request is not possible.
- Make a decision based on facts and not personal opinion.
- Only turn down the request if there’s a valid business reason.
- Give the employee a decision within 3 months of receiving the request (unless this has been extended by agreement).
The Acas Guidance also recommends that employers follow the Acas Code and their own flexible working policy, if applicable.
Deal with requests in a reasonable manner
There is no statutory definition of what it is to deal with a request in a reasonable manner, but the Acas Code, the Acas Guidance and the Archived Acas Guide all make recommendations on how an employer should deal with an employee's request for flexible working. These are considered below.
The Acas Code, which as a statutory code must be considered by tribunals (section 207, TULRCA), makes the following suggestions as to how an employer should deal with a request:
- The employer should arrange to talk with the employee as soon as possible after receiving their written request, unless the employer intends to approve the request, in which case a meeting will not be necessary (paragraph 4).
- The employer should allow the employee to be accompanied by a work colleague at this discussion meeting, and at any appeal discussion, and the employee should be informed of this beforehand (paragraph 5).
- The employer should discuss the request with the employee as this will enable it to get a better idea of the changes the employee is looking for and how those might benefit both the employee and the employer's business (paragraph 6).
- Wherever possible the discussion should take place in a private place where what is said will not be overheard (paragraph 7).
- The employer should consider the request carefully, looking at the benefits of the requested changes for the employee and the employer's business and weighing these against any adverse business impact of implementing them. In doing so the employer must not discriminate unlawfully against the employee (paragraph 8).
- Once the employer has made its decision it must inform the employee as soon as possible and should do so in writing so as to avoid future confusion over what was decided (paragraph 9).
- If the employer accepts the request, or does so with modifications, the employer should discuss how and when the changes might best be implemented with the employee (paragraph 10).
- If the employer refuses the request if may only do so for one or more of the reasons set out in the legislation (paragraph 11).
- If the request is refused, the employer should allow the employee to appeal the decision. Allowing the employee to do so may reveal new information or an omission in following a reasonable procedure when considering the request (paragraph 12).
- All requests, and any appeals, must be considered and decided on within the three-month decision period, unless the employer and employee agree to extend it (paragraph 13).
- When the employer arranges a meeting to discuss an employee's request, including an appeal meeting, and the employee fails to attend this and a rearranged meeting without a good reason, the employer may treat the request as withdrawn in which case it must inform the employee of that decision (paragraph 14).
Tribunals have been critical of employers who appeared to be more concerned to explain why a requested working pattern could not work, rather than investigating how it could be accommodated:
- In Craddock v Governing Body of Indian Queens CP School & Nursery and another ET/1701587/04, which concerned claims for unfair dismissal and sex discrimination, the employer was criticised for a negative approach towards an employee's request. It appeared to the tribunal in this case that the employer had approached the issue by considering why the request could not work, rather than how the difficulties could be overcome.
- The tribunal in Webster v Princes Soft Drinks ET/1803942/04, commented that a certain level of cost and inefficiency was "an inevitable consequence of the obligation on employers to consider family-friendly policies". The tribunal went on to state that: "If some inefficiency, however minor, was a bar, it would be tantamount to saying that a senior management post cannot be done on a job-share basis". In this case Mrs Webster's claim for indirect sex discrimination succeeded but her claim under section 80G(1)(b), challenging the grounds on which her flexible working request had been rejected, was dismissed. The tribunal held that it could not evaluate the employer's reasons for relying on the stated grounds for rejecting Mrs Webster's request and could not substitute its own view (paragraph 14).
Rather than dwelling on minor impediments to a flexible working proposal, an employer could prepare a detailed impact assessment of the adverse consequences of the suggested working pattern, and would need to share and discuss such an impact assessment with the employee.
Since the decision in London Underground v Edwards (No 2)  IRLR 364, it has been open to women whose requests for flexible working are rejected to seek redress by making a sex discrimination claim.