What to do if your flexible working request is rejected

If you have submitted a flexible working request that has been rejected by your employer then there are certain steps that you can take – these are laid out below:

1. Ask for written reasons explaining why your flexible working request was rejected
2. Appeal
3. Submit a grievance (and subject access request)
4. Consider whether you have grounds for a claim
5. Collect evidence
6. Contact a lawyer

Ask for written reasons explaining why your flexible working request was rejected

Your employer can reject your request for flexible working on only one of two grounds:

1. The request lacks eligibility (if, for example, your employer does not believe that your flexible working request meets the relevant statutory requirements (e.g. you do not select a date by which you want the flexible working request to be implemented) or if you are not eligible to make a flexible working request (e.g. if you are an employee but have less than 26 weeks’ continuous service)
2. If there are prescribed business reasons for rejecting the request (for example, if your employer believes that it would be too costly to implement the request, if it believes that it won’t be able to recruit additional staff, or if it believes that granting the request would have a detrimental impact on performance)

Although there is no legal requirement for it to do so, your employer should also provide you with written reasons explaining the reasons why your request has been rejected (following ACAS guidance). If your employer does not provide you with written reasons for the rejection you should send your employer an email requesting written reasons for the rejection.

Appeal

Again, there is no legal requirement for your employer to allow you an appeal against the decision to reject your flexible working request. However, the ACAS Code states that employees should be allowed to appeal against the decision if you: 1) identify information that was missed or not available when the original decision was made; or 2) believe that your employer’s policy or the ACAS Code were not finished.

If your employer has rejected your flexible working request then you should submit an appeal in writing (preferably by email) outlining the grounds of your appeal.

If your employer allows you to appeal against the decision to reject your flexible working request then an appeal meeting should be held.

Submit a grievance (and subject access request)

If your employer rejects your appeal and you continue to be unhappy about the way the flexible working request was dealt with then it is normally sensible, tactically, to:

1. Submit a formal written grievance complaining about why you are unhappy about the way in which the flexible working request was dealt with; and
2. Submit a subject access request (requesting access to your personal data relevant to the flexible working request)

Submitting a grievance could, potentially, persuade your employer to overturn its original decision; equally, it will be useful evidence if the case ever goes to the Employment Tribunal. Submitting a subject access request will potentially unearth useful evidence relevant to how the flexible working request was dealt with (such as, for example, communications between senior management regarding how the flexible working request was processed).

Consider whether you have grounds for a claim

If your employer deals with your request for flexible working unfairly then you could have the following potential grounds of claim:

1. A claim to the Employment Tribunal that your employer has failed to properly apply the statutory flexible working scheme (for example, they failed to deal with your flexible working request in line with the rules of the statutory flexible working scheme); and/or
2. A claim to the Employment Tribunal that your employer has violated other statutory rights (for example, it discriminated against you in rejecting your flexible working request or that you have a constructive dismissal claim)

Consider whether any of these forms of claims would apply.

Collect evidence

If you believe that you have been discriminated against or constructively dismissed by your employer’s conduct then it is recommended that you collect evidence to support your claims – this would include both documentary and witness evidence. You will want to collect any written evidence which supports your argument that you have, for example, been discriminated against: this would include emails, text messages, other electronic messages, notes of meetings, transcripts of telephone calls, relevant policies of your employer’s etc.); you will also want to collect witness statements from any third parties who witnessed the conduct that you are complaining of.

Collecting this information at an early stage can help you to gain an understanding of how strong your case is and will be helpful to any lawyer assessing your case.

Contact a lawyer

If you think that you have been treated unreasonably in relation to your flexible working request (or any other workplace dispute) then it is a good idea to seek advice from a specialist employment lawyer – doing so will allow you to gain a better understanding of the strengths and weaknesses of your case, your options, and the costs and benefits of taking legal action.

About the author

Chris Hadrill is a solicitor (Partner) in the employment team at Redmans Solicitors and a member of the Employment Lawyers Association. He advises on employment law and workplace disputes on behalf of employees and employers on a daily basis.