Law guide: Employment

See how we helped Michael

"Fantastic! The legal document I used was so comprehensive and easy to complete. It is very reassuring to know my business now has this level of protection"

Michael S, London

Appeals of a flexible working decision

Appeals of a flexible working decision

Contents

Right of appeal

England, Wales and Scotland

You should comply with the Acas Code of practice for handling in a reasonable manner requests to work flexibly, which states that you should give your employee an opportunity to appeal the decision.

The Acas code doesn't state how or by when an appeal should be made by your employee. However, your employee must set out the grounds for making the appeal. There are no restrictions on the number or kinds of grounds of appeal they may use.

You should consider drafting a flexible working policy if your business doesn't have one, so you have some control over the procedure the employee should use for their appeal. In any event, you should follow a reasonable appeal procedure.

Where possible, the appeal should be heard by a different manager than the one who refused the employee's request. You should, but are not legally required to, allow the employee to be accompanied to the meeting by a work colleague.

If a meeting is arranged to discuss the appeal and your employee cannot attend it, they should contact you as soon as possible to explain the reasons for their absence so it can be rearranged. If they then fail to attend the rearranged appeal meeting without a good reason, you can treat the appeal as withdrawn. This will mean that your employee will not be able to make a further statutory request for flexible working for another 12 months.

You must inform your employee of the outcome of their appeal, but you're not legally required to put it in writing.

Northern Ireland

If your employee disagrees with your decision, they have a right of appeal. If they want to appeal, they must do so 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 number or kinds of grounds of appeal they can use.

An appeal meeting must be arranged within 14 days of receiving your employee's appeal notice. Where possible, the appeal should be heard by a different manager than the one who refused the employee's request.

You must allow an employee to be accompanied to the meeting by a colleague or certified trade union representative working in your business. Your employee must be told about the outcome of their appeal in writing, within 14 days after the appeal meeting.

Accepting the appeal

England, Wales and Scotland

You must inform your employee of your decision as soon as possible. Note that all requests, including any appeals, must be decided within 3 months from the date the application is received by you.

The Acas code states that your decision should be put in writing to the employee and, if accepted, it is recommended that you should:

  • date your letter;
  • provide details of their new working pattern;
  • state the date on which it will start;
  • state how the new working pattern will be implemented; and
  • state that the arrangement means a permanent change to your employee's terms and conditions of employment (unless agreed otherwise).

Northern Ireland

If you accept the appeal, you must write to the employee within 14 days of the appeal meeting ensuring that the correspondence:

  • is dated;
  • details their new working pattern;
  • states the date on which it will start; and
  • states that the arrangement means a permanent change to your employee's terms and conditions of employment (unless agreed otherwise).

Rejecting the appeal

You must notify the employee if the appeal is rejected. This will amount to your final decision and ends the formal right-to-request procedure.

England, Wales and Scotland

You must inform your employee that you have rejected the appeal as soon as possible. Note that all requests, including any appeals, must be decided within 3 months from the date the application is received by you.

The Acas code states that your decision should be put in writing to the employee and it is recommended that your notice should contain the same content as required below for Northern Ireland.

Northern Ireland

You must write to the employee within 14 days of the appeal meeting ensuring that the correspondence:

  • is dated;
  • states the grounds for the decision in direct response to the employee's grounds for making the appeal; and
  • explains 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.

Dealing with unresolved flexible working requests

There may be occasions where an employee feels that you've not satisfactorily dealt with their application. The following sets out what you can do in an attempt to resolve this.

Informal resolution

You should first try to sort out any problems informally by discussing it with the employee, preferably in a meeting.

Grievance procedures

If an employee still feels that the issue has not been resolved after using informal methods, they should use your grievance procedure.

Third-party conciliation/mediation

If you cannot resolve the issue internally, you could try using an external third-party mediator or conciliator, such as Acas, the Labour Relations Agency (for Northern Ireland) or a union representative. Note that in England, Wales and Scotland, an employee must use the Acas 'Early conciliation' scheme before starting a tribunal claim (see below).

Tribunal claims

An employee can make a complaint to an employment tribunal where:

  • you failed to deal with the application in a reasonable manner;
  • you rejected the application based on a reason other than the set grounds for refusal;
  • your decision to reject an application was based on incorrect facts; or
  • you didn't follow the procedure properly, e.g. where you failed to provide a proper explanation to the employee of your decision to refuse their request or notify the employee of your decision within the relevant time period.

A claim must be started within 3 months of a procedural breach, or of the date you notified your employee of your decision of any appeal. This time period is subject to the Acas 'Early Conciliation' scheme in England, Wales and Scotland (see below).

An employee is unlikely to succeed if they make a complaint because they 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 try to look at how the request was considered. A tribunal will want to see evidence:

  • of any facts you relied upon to reject the application; and
  • that you provided a sufficient explanation stating why the business ground applied to the employee.

Remedies and compensation

An employment tribunal can order you to:

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

In England, Wales and Scotland, the maximum level of compensation is 8 weeks' pay - although there is a statutory cap on this of £489 per week. In Northern Ireland it is £500.

For applications made in Northern Ireland there is a separate award of up to 2 weeks' pay where you failed to allow the employee to be accompanied at a meeting.

The Acas arbitration scheme (England, Wales and Scotland)

Acas runs a scheme called 'Early Conciliation' (EC). 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 more details see the section 'Before making a claim' under Employment Tribunal. See also 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.

The Labour Relations Agency pre-conciliation scheme (Northern Ireland)

The LRA runs a similar pre-claim conciliation scheme 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.

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;
  • exercise, or propose to exercise, a right under the flexible working request procedure;
  • make, or state their intention to make, a complaint to an employment tribunal in respect of a flexible working application; or
  • in Northern Ireland only, exercise or seek to exercise their right to be accompanied at a meeting to discuss their request (this also applies to any employee accompanying 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 non-renewal of a fixed-term contract. It could also include constructive dismissal, i.e. where your employee resigns because you've substantially breached their contract of employment.

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

Discrimination

In some circumstances, rejecting an employee's flexible working request could provoke the employee to claim for discrimination on grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, sex, sexual orientation or religion/ belief (England, Wales and Scotland) or religious belief/ political opinion (Northern Ireland).

For example, if you reject the request of a woman returning from maternity leave to work part-time, this could be indirect sex discrimination, on the grounds that a greater proportion of women than men have the main parental caring responsibility. Requiring her to work full-time, therefore, 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 it was a proportionate means of achieving a legitimate aim.

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.

Therefore, if you agree to a request to work fewer hours, the employee is still entitled to the same pay and benefits (on a pro-rata basis) and must have access to training and promotion opportunities.