Here we list cases that show how flexible working requests can lead to claims. We summarise the facts of the case, the court’s evaluation of what happened, and the decision’s implications for organisations. They should be read alongside our Requesting flexible working Q&As.

UKEAT/0027/16/DA
Issue: Correct reasons for refusing flexible working

A nursing assistant worked for an NHS Trust in residential premises for patients with mental health problems who were adjusting from life in hospital to independent living. She had been working the nightshift for several years but made a flexible working request to move to day shifts for family reasons. She said the night shifts could be covered by other workers. This request was refused.

The employer’s decision letter set out the detrimental effect accepting the request would cause, its inability to reorganise the work among the existing staff, and the disproportionate burden it would cause on a small number of nursing assistants working on night shifts. An employment tribunal dismissed her claim that the employer’s refusal was factually incorrect.

Decision

The EAT said employers do not have to accept flexible working requests but the employer must base any refusal of a request on correct facts. It was not for an employment tribunal to judge the reasonableness of an employer’s refusal to provide flexible working; it just had to investigate the facts on which a decision to refuse is based, in order to decide whether the refusal was based on incorrect facts.

Implications for employers

Employers should follow the Acas code of practice on handling flexible working requests and consider the request properly. If the request is rejected, then employers should ensure the reason for refusing the request is one of the proper business reasons allowed in the legislation, such as an inability to reorganise work with other existing staff.

It is not for an employment tribunal to agree or disagree with whether the decision was fair or not, only with whether it was in any way based on incorrect facts. The business reasons behind a decision to refuse are for the employer to decide, and a tribunal is unlikely to interfere with the employer's judgment.

ET/2202747/2015
Issue: Requesting flexible working following maternity leave

A single parent employee at an investment bank made a flexible working request prior to her return from maternity leave seeking:

  • working three days per week in the office
  • homeworking on Thursdays
  • not working Fridays.

The employer rejected this request using examples and citing the impact on the firm's ability to look after its clients; the unpredictability of the claimant's role; tight timescales for various tasks; and disproportionate pressure on others in the small team.

Decision

The tribunal rejected her claim for breach of the flexible working legislation and held that it was not indirect sex discrimination to require the mother to work full time. The provision or requirement for roles to be carried out full time by one employee did not place the employee at a particular disadvantage as the excessive demands on her time and energy were an everyday reality for parents rather than a particular disadvantage for the claimant.

Implications for employers

Employers should follow the ACAS code of practice on handling flexible working requests and ensure the reason for refusing the request is one of the specified reasons allowed in the legislation. The request is just that – it is not a right to work flexibly. Employers can use their own business judgment to establish one of the prescribed business grounds for refusing requests, such as:

  • 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
  • planned structural changes.

The refusal letter should identify the relevant grounds and any factual evidence supporting the business grounds that apply.

Indirect discrimination claims are the hidden risk to employers that refuse a flexible working request. If an employee can provide evidence that the pattern of work refused causes a particular disadvantage to women over men, then a tribunal may find that such a provision is discriminatory, although that was not the case here.

ET/2601103/2015
Issue: Requesting flexible working following maternity leave

A full-time designer for an interior design company made a flexible working request following her return from maternity leave for:

  • a reduction in hours
  • working from home with occasional visits to the office
  • doing most of her work after 6pm.

After a meeting with the designer, the managing director seemed initially receptive to home working but later wrote a letter refusing the request. The refusal was based on the collaborative way designers on technical designs worked, and that the frequent design changing at short notice that was common in the business would be difficult to deal with during evening home working. An appeal to a health and safety consultant closely connected to the employer was also unsuccessful. The designer resigned in response to the rejection of her flexible working request.

The company offered to deal with her complaint under the grievance procedure and offered seven days to retract her resignation. Instead, she brought an employment tribunal claim for breach of the flexible working legislation, constructive unfair dismissal, and indirect sex discrimination.

Decision

The tribunal rejected all the employee’s claims and said the employer had not breached the flexible working legislation. It had dealt with her flexible working request reasonably. There is no right to work flexibly, only a right to request flexibility. The rejection of the request was also reasonable. The indirect sex discrimination also failed because there was no evidence presented that women suffer a greater disadvantage from not being able to work from home.

Implications for employers

The right to request flexible working applies to all employees providing they have 26 weeks’ continuous employment and have not made a flexible working request in the previous 12 months. Flexible working requests must be dealt with in a reasonable manner within three months. Employers should follow the Acas code of practice on handling flexible working requests and ensure the reason for refusing the request is one of the specified reasons allowed in the legislation such as inability to reorganise work among existing staff.

Rejecting a request should be supported by evidence that justifies the employer’s decision. However the onus is not on the employer to prove the request is too difficult to accommodate as employers can operate as they see fit. Employers are in the best position to assess what is in their own best interests provided their approach is not discriminatory, and they have one of the permissible grounds for a rejection of the request.

Employers should consider having a flexible working policy and avoid discriminatory decisions. The employer must not make a 'provision, criterion or practice' that applies to all employees equally but puts women at a particular disadvantage. In this case the employer’s refusal was not discriminatory.

(unreported, 24 January 2012, ET)
Issue: Flexible working request/sex discrimination

A cinema employee worked a variety of different shifts between 8.30am to 4.00pm over a seven-day working week. She made two requests for flexible working to take account of her childcare arrangements; both these requests were rejected. After her second flexible working request was rejected, she brought a claim of indirect sex discrimination under the Equality Act 2010.

Decision

The employee won her claim. The employer had a legitimate aim, which was requiring staff to work shifts flexibly over the week to run a smooth, efficient and economic business. However, the employer was only justified in requiring the claimant to work with some flexibility but was not justified in rejecting the employee’s proposal to work part-time in a job share. A job share would cause a minimal adverse effect on the employer’s business, balanced against a severe impact on the employee by refusing the proposal which would mean that she lost her job.

Implications for employers

Job share requests are one of the hardest types of flexible working request for employers to refuse. If two employees share all aspects of a job between them, then the job is still being done for the employer as before.

Employers should try to accommodate the request considering the type of job shares requested, for example, split weeks of two and a half days per week or three days each so there is an overlap of one day to assist with continuity and communications. Other splits could include alternate weeks.

Employers must consider how the request can be arranged and good communications ensured to make best use of the job sharer’s experience and expertise.

Employers may need additional training and equipment to implement the request and can consider these when assessing the practicality of agreeing to it. A job share policy may also be advisable.

(ET/1803942/2004 ET)
Issue: flexible working request/sex discrimination

In this case, an employee whose request for flexible working was refused, won her claim for indirect sex discrimination. The case illustrates the emphasis that tribunals place on a full consideration of the feasibility of a flexible working request.

The employee was a senior financial accountant who applied to job share her post. The employer complied fully with the Flexible Working Regulations 2014 in its consideration of the request. As part of the justification for the refusal of the request, the employer said there was a risk that the different management styles of the job sharers would interfere with their shared management of the employees reporting directly to them.

Decision

The tribunal found that those concerns about the risk of different management styles did not justify the refusal of the job share, which was indirectly discriminatory. The employer should have considered delegating routine tasks to other members of staff. The tribunal also drew adverse inferences from the failure to respond properly to a sex discrimination questionnaire.

Implications for employers

Employers must carefully consider any requests under the statutory right to request flexible working. As this case shows, employers may have to put up with a certain level of inconvenience, cost and inefficiency as an inevitable consequence of employers’ obligations to improve family-friendly workplaces. Some minor inefficiencies do not justify refusing a flexible working request, otherwise no senior management posts at all could be done on a job-share basis.

Employers should consider each application objectively, and not evaluate if one employee’s need for flexible working is greater than another’s. Employers who are really concerned about adverse consequences of a new working pattern could prepare detailed impact assessments which can be discussed with the employee. This would avoid criticism that the employer is putting minor impediments in the way of a flexible working proposal.

Employers should consider a number of practical issues to reduce the chances of claims being made against them, including:

  • Start from a positive perspective – Employers should consider ways of overcoming any disadvantages to the flexible working proposal rather than considering why the request could not work. How can any difficulties be overcome, including alternative ways of meeting the employee’s request for flexibility? Employers should consider if a knee jerk response that a role cannot be performed on a flexible basis is due to stereotypes or a genuine business need. What about trying a time limited change to working arrangements before reverting back to the original working pattern?
  • Preparing before the meeting – Before discussing the application, the employer should consider the potential effects of the new work pattern and ways to mitigate those effects. This may entail the views of line management and effect on colleagues.
  • Maintain records – Flexible working requests should be recorded and processed consistently, including the basis for any rejections of requests which should also be consistent with previous decisions. Records should also include proper diversity information about proportions of different groups within the workforce. Some data may need to be anonymised and all data should be processed and kept in accordance with data protection principles.

(unreported, EAT/503/00 13 December 2001, EAT)
Issue: flexible working request/sex discrimination

In this case, an employee whose request for flexible working was refused, lost her claim for indirect sex discrimination.

The employee was a female solicitor who made a request to work part-time or from home on a part-time basis. The employer complied fully with the flexible working regulations in its consideration of the request. During the process, the employer expressed some concerns about the fact that the office was small, the need for two full-time solicitors, that commercial clients required a prompt and efficient service, and that attendance at the employer's premises was necessary in order to allow access to files and proper supervision of work. The employer was also concerned that reduced fee income would substantially affect its profitability.

Decision

The tribunal and the EAT agreed that the employer’s decision that the firm needed a full-time solicitor in that role and its other concerns did justify the refusal of the employee's flexible working request. The employee lost her claim of indirect sex discrimination.

Implications for employers

In this case, the workplace concerned was a small office and the case was specific to its facts. Generally, an employer’s bald assertions that a job is incapable of being done by a part-timer must be objectively justified, otherwise there will be an indirect discrimination claim.

Employers must deal with requests in a reasonable manner and follow the ACAS statutory code of practice on handling requests to work flexibly. A general dislike of employees working part-time or working from home would not be reasonable grounds to refuse a flexible working request. Employers should only refuse requests if there is a good business reason for doing so which must be on one or more of the following business grounds:

  • burden of additional costs
  • inability to reorganise work amongst existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • planned structural changes to the business.

Take, for example, a flexible working request from an employee who wishes to work two days a week on the business’s quietest days. The employer may have grounds to refuse the request if it has greater customer demand on the three other days and can show it would struggle to recruit for those remaining three days.

​Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice

Explore our related content

Factsheets

Flexible working practices

Explores the benefits of flexible working, the types of arrangements commonly used and gives practical tips on implementing flexible working practices

Read more
Top