Law guide: Employment

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After the decision

After the decision

Contents

Right of appeal

If your employee disagrees with your decision, they have a right of appeal. If they wish to exercise that right, they must make their appeal in writing within 14 days of receiving your written notice refusing their request.

In the appeal notice, they must set out the grounds for making the appeal. There are no restrictions on the grounds for appeal.

You must arrange an appeal meeting within 14 days of receiving your employee's appeal notice. Where practicable, the appeal should be heard by a different manager.

The principles on the right to be accompanied, pay for attending the meeting and what happens if your employee fails to attend are the same as for the initial meeting.

You must inform your employee of the outcome of their appeal in writing within 14 days after the date of the meeting.

If you change your mind and choose to accept their request, this notification must:

  • Be dated
  • Include a description of the new working pattern
  • State the date from which the new working pattern is to take effect

If you choose to still refuse the request, this notification must:

  • Be dated.
  • State the grounds for the decision. These must be in direct response to the employee's grounds for making the appeal.
  • Explain why the grounds for refusal apply in the circumstances. Your explanation should provide the kind of detail required in your explanation following the initial meeting (Applications for flexible working).

This notice amounts to your final decision and ends the formal right-to-request procedure.

Dealing with unresolved flexible working requests

There may be occasions where an employee feels that you have not dealt with their application to their satisfaction.

Informal resolution

You should first try to sort out any problems with an application informally. For example, if a manager misses a deadline to respond to an employee's request, you should tell them to deal with the application as quickly as possible to discourage the employee from taking more formal action.

Grievance procedures

If an employee feels that the issue has not been resolved using informal methods, they may use your grievance procedure if they wish.

Third-party conciliation/mediation

If you cannot resolve the issue internally, you could try using an external third-party mediator or conciliator, e.g. Acas or a union representative.

Tribunal claims

Where all other methods have failed, the employee may feel that an employment tribunal claim is necessary.

An employee may make a complaint to an employment tribunal where either:

  • Your decision to reject an application was based on incorrect facts, although this issue should first be covered in the appeal meeting
  • You didn't follow the procedure properly, e.g. you failed to hold the meeting to discuss the application within the timescale (where no extension had been agreed) or where you failed to provide a complete and proper explanation to the employee of your decision to refuse their request

An employee cannot make a complaint where they simply disagree with the business grounds you give.

The employment tribunal does not have power to question your business reasons, although it can examine the facts on which the business reason was based to see if they are factually correct. However, if a case is brought jointly with other legislation, e.g. discrimination legislation, an employment tribunal may seek to examine how the request was considered. A tribunal will want to see evidence:

  • Of any facts you relied upon to reject the application
  • That you provided a sufficient explanation as to why the business ground applied

The Acas arbitration scheme

Before reaching a tribunal, Advisory Conciliation and Arbitration Service (Acas) may offer to resolve the dispute through its flexible working arbitration scheme. Participation in the scheme is entirely voluntary but if both parties agree to arbitration, the decision of the arbitrator is binding and the employee loses their right to go to an employment tribunal.

In April 2014, Acas introduced a scheme called 'Early Conciliation'. This is a free service designed to resolve workplace disputes. If you have a problem with your employee that you can't resolve and the employee is considering lodging the claim at an Employment Tribunal, Acas must first offer the scheme.

For further details see the section 'Before making a claim' under Employment Tribunal. You can also see the Acas website for more information.

The basis for making a complaint to the scheme, and potential remedies available, are the same as they are at an employment tribunal.

Remedies and compensation

An employment tribunal or Acas arbitration can order you to:

  • Pay an award to the employee
  • Reconsider an application by following the procedure correctly

The maximum level of compensation is eight weeks' pay - although there is a statutory cap on the amount of a week's pay (£464 from April 2014).

There is a separate award of up to two weeks' pay where you failed to allow the employee to be accompanied at a meeting.

Employee protection

Detriment or dismissal

You must not treat an employee detrimentally or dismiss them for a reason relating to their flexible working request. In addition, you should note that rejecting a flexible working request could give rise to a discrimination claim.

Your employee may make a complaint to an employment tribunal if they suffer a detriment or are dismissed because:

  • They make - or propose to make - an application to work flexibly
  • They exercise - or propose to exercise - a right under the flexible working request procedure
  • They make - or state their intention to make - a complaint to an employment tribunal in respect of a flexible working application
  • They exercise - or seek to exercise - their right to be accompanied at a meeting to discuss their request or they accompany another employee to such a meeting

A detriment is where you act - or deliberately fail to act - in a way that results in your employee being unfairly treated, e.g. where you fail to offer them promotion, facilities or training opportunities that you would otherwise have offered or made available to them.

Dismissal means the termination of your employee's employment, with or without notice, including redundancy selection and the non-renewal of a fixed-term contract. It could also include constructive dismissal, i.e. where your employee resigns believing you have substantially breached their contract of employment.

Employees who suffer a detriment or are dismissed in these circumstances may make a complaint to an employment tribunal.

Discrimination

In some circumstances, rejecting an employee's flexible working request could open up the possibility of a claim for discrimination on grounds of sex, race, religion or belief (England, Wales and Scotland) or religious belief or political opinion (Northern Ireland), sexual orientation, disability or age.

For example, if you reject the request of a woman returning from maternity leave to work part-time, this could be seen as indirect sex discrimination. This is on the grounds that a greater proportion of women than men have the main parental caring responsibility - you requiring her to work full time puts her at a disadvantage compared to her male colleagues.

However, even if she is put at a disadvantage by your refusal, you can still justify your actions at a tribunal if you can show that they were a proportionate means of achieving a legitimate aim. This applies to indirect discrimination only.

Part-time worker discrimination

You must not treat part-time workers less favourably in their contractual terms and conditions than comparable full-timers - unless you can objectively justify that treatment.

So, if you agree to a request to work fewer hours, bear in mind that the employee is still entitled to the same pay and benefits (on a pro-rata basis) and access to training and promotion opportunities.