Ask The HR Expert: Can I refuse a flexible working request from an employee?

Peninsula Team

November 11 2011

In order for an employee’s request for flexible working to be considered in the first place, the employee must be eligible and their application must be in the correct form. The application may be refused, but only if the decision is based on a specified ground for refusal that is recognised by law. If an employee’s request for flexible working is refused for a reason not recognised by law, or the way in which it is dealt with does not conform to the statutory procedure, the employer may end up facing a Tribunal claim.

To qualify for the right to request flexible working, the employee must have been continuously employed for at least 26 weeks on the date the application was made. Additional criteria must also be met if the employee is making a request under their role as a parent or carer.

In order for an application for flexible working to be made in the correct form, it must: be made in writing; be dated; state the type of application that it is; state if and when a previous application for flexible working has been made; specify the change being requested and the proposed start date for this change; explain how the change might impact on the employer and how any such effect might be dealt with; explain how the employee meets the conditions required to be eligible to request flexible working.

One or more of the following specified grounds for refusal must apply for the request to be legally refused: burden of additional costs; damaging effect on the ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; damaging impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes.

An employee is entitled to appeal against the employer’s decision to refuse their application for flexible working within 14 days of receiving notice of refusal and in turn, an employer must meet with the employee within 14 days of receiving notice of appeal, unless the decision has already been made to overturn the original refusal. Within 14 days of the appeal meeting, the employer must give written, dated notice of the decision of the appeal, stating the grounds for decision (if the appeal has been dismissed) or the contract variation (if the appeal has been upheld).

Stating that there is simply not sufficient time to be flexible is not an adequate reason for refusal of a flexible working request. An employer will be breaking the law and may consequently be taken to Tribunal if an application for flexible working is refused and none of the specified grounds for refusing apply. An employer must also be careful that their decision to reject the application was not based on incorrect facts and that they did not fail to either hold a meeting or notify the employee of a decision in accordance with the standard procedure; failure to do this may also result in a Tribunal claim.

For further information or advice please contact Peninsula’s Advice Service on
0844 892 2772

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