Legislation overview

The area of flexible working has undergone numerous changes over the last few years, including the extension of the right to request flexible working. In addition to the EU Directives the key domestic legislation includes:

  • Employment Rights Act 1996, especially sections 80F to 80I
  • Employment Act 2002, especially Section 47
  • Children and Families Act 2014
  • Employment Act 2002 (Commencement No.3 and Transitional and Saving Provisions) Order 2002 (SI 2002/2866)
  • The Flexible Working Regulations 2014 (SI 2014/1398)

The right to request flexible working which came into force on 30 June 2014 refers to the right to formally request more flexible working arrangements.

In addition to the above, the legislation relating to maternity, paternity and adoption leave and pay, and part-time working, also constitute an important part of the range of family-friendly provisions. For further examples of relevant key legislation see our Maternity, paternity, shared parental and adoption leave and pay Q&As, Parental rights and family-friendly provisions Q&As and Part-time workers Q&As.

Time off for training

A right to request time off for training came into force on 6 April 2010 for those employees in businesses with 250 or more employees. The key legislation includes:

  • Education and Skills Act 2008
  • Apprenticeships, Skills, Children and Learning Act 2009
  • The Employee Study and Training (Eligibility, Complaints and Remedies) Regulations 2010 (SI 2010/156)
  • The Employee Study and Training (Procedural Requirements) Regulations 2010 (SI 2010/155)
  • The Employee Study and Training (Qualifying Period of Employment) Regulations 2010 (SI 2010/800.

Answer:

No, employees do not have the right to work flexibly. However, many employees have a right to formally request more flexible working arrangements - see the related Q&A Which employees qualify to make a request for more flexible working arrangements?.

Employers have a duty to consider the requests in a reasonable manner (the previous fairly prescriptive procedure was simplified on 30 June 2014 with an emphasis on being reasonable). A request which is refused may also give rise to a claim for breach of the flexible working legislation or for sex discrimination or potentially for age discrimination. Handling a request correctly is therefore extremely important, as for example, there have been an increasing number of successful sex discrimination claims where an employer has refused a request for flexible working, especially where the request involves part-time working. See the related Q&A If an employer refuses a request for flexible working what claims may the employee make?.

A statutory Code of practice on handling in a reasonable manner requests to work flexibly and good practice guidance is available on the Acas website.

For information on the right to request time off for training see the related Q&As.

Answer:

With effect from 30 June 2014 the Flexible Working Regulations were amended. All individuals requesting the right to request flexible working must meet the following qualifying requirements:

  • have employee status - for further details on determining employee status see our Employee status Q&As
  • have been continuously employed by the employer for at least 26 weeks by the application date
  • have not made another application to work flexibly under the right during the past 12 months
  • are not employee shareholders, and
  • are not agency workers (unless they are returning from a period of parental leave).

Employers must consider requests from those who meet these requirements.

Previously there were numerous other requirements as the old legislation required requests to be made only by those with children under the age of 17 (or 18 if the child was disabled) and certain carers. This is no longer the case and employees who do not have children or caring responsibilities can also make a request.

Exclusions

Only employees are able to make the statutory request for flexible working unless the employer considers the request voluntarily. Fixed term and part time employees etc are included, but self employed contractors and employee shareholders are excluded.

Agency workers are also generally excluded, although from 8 March 2013 the right to request flexible working is expressly extended to those agency workers who are returning to work following a period of parental leave.

For more general information on agency workers and employee shareholders see our Temporary workers Q&As and Employee status Q&As.

If an employee does not qualify for the statutory right to request flexible working can the employer just ignore the request? There is no risk of a flexible working claim, if the employee does not qualify however there may be other risks.

In these situations the employer may consider a flexible working request voluntarily. Indeed it may be best practice to do so as otherwise the employee may be even more likely to pursue a discrimination claim if a request is dismissed out of hand. An employee could bring a claim under the Equality Act 2010 for sex discrimination - for example a female employee could claim indirect sex discrimination on the grounds that women are more likely than men to have primary childcare responsibilities so fewer women can comply with the requirement to work full time. A request for flexible working may be made by an employee with a disability and in such circumstances employers must remember their duty to make reasonable adjustments under the Equality Act 2010, otherwise a disability discrimination claim may result.

It is therefore advisable for employers to take all requests for flexible working seriously, even from employees who do not qualify for the usual right to request procedure. Employers can choose to consider a request for flexible working arrangements from any of their workers even those who are not ‘employees’ or who have less than 26 weeks continuous employment.

Generally employer’s should avoid an overly technical approach for requests for flexible working.If the employer makes a mistake in their request the employer can point this out and still consider the request properly.

Those employers who have adopted their own flexible working policy should ensure as a minimum that it reflects the remaining statutory provisions and complies with the Acas statutory Code of practice and guidance. For information on the procedure that employers should now follow see the related Q&A Is there a formal procedure to follow when making and responding to a request for flexible working arrangements?.

Answer:

A qualifying employee can request a change to the terms and conditions of their employment relating to, for example:

  • changes to their hours and times of work
  • changes to places of work
  • part-time working
  • job sharing
  • working from home
  • working term-time only
  • working shifts
  • increased holiday entitlement.

Answer:

With effect from 30 June 2014, the government removed the more formal statutory procedure for considering requests. Instead employers will have a duty to consider all requests in a reasonable manner. The current procedure is as follows:

1. The employee makes a request to change terms and conditions of employment. The employee will specify in writing (including email):

  • the change applied for
  • that the application is being made under the statutory right to request flexible working
  • if and when any previous application was made
  • the date on which it is proposed the change should become effective
  • the effect, if any, the employee thinks the change would have on the employer
  • how, in their opinion, any such effect might be dealt with
  • the date of the application.
The Government have published a standard form for employees to use when making a flexible working application which is available on the GOV.UK website.

2. The employer must deal with the request in a reasonable manner. There is an Acas statutory Code of practice and guidance which suggests how employers should handle the request. If the employer does not wish to immediately grant the request in the form it is made the Code suggests employers should:

  • talk to the employee as soon as possible after receiving the written request
  • the meeting should be at a time and place being convenient to both parties
  • allow the employee to be accompanied by a work colleague at the discussion meeting
  • discuss the request with the employee in private where they will not be overheard apart from by the companion.

3. After the meeting the employer must consider the pros and cons of the request, taking into account the explanations the employee has given and being careful not to discriminate.

Once the employer has made its decision it must inform the employee is writing as soon as possible (it is also sensible that the decision is dated.

4. If the request is refused the notification must only do so for one of the grounds for rejection set out in the legislation (see the related Q&A What factors can an employer take into account when considering whether to refuse a request for flexible working? with an explanation as to why those grounds apply. The employer should allow the employee to appeal the decision.

5. If appealing, the employee can come up with new information or explain any unreasonable aspects of the employer’s procedure in considering the request.

6. All requests and appeals must be considered within a three month decision period unless the parties agree to extend this period.

7. If there are problems with arranging the date and time for the meeting or the appeal and the employer then fixes a subsequent meeting at another date and time ,if the employee fails to attend the rearranged meeting without good reason then the employer is allowed to deem the request as having been withdrawn. The employer must inform the employee accordingly.

8. The employee should at the very least (as Acas recommends) be allowed a companion who is employed by the same employer as the applicant, or a trade union representative. However, employers can always choose to allow a companion who does not work for the same employer (for example a family member) although they do not have to. The companion can usually address the meeting and confer with the employee, but should not answer questions instead of the employee. Employers should also allow employees to be accompanied by work colleagues at any appeal meeting as well and employees should be informed of the ability to invite a companion before any discussion. If employers prevent this then they are unlikely to have dealt with the request in a reasonable manner.

The Acas statutory Code of practice and guidance on handling in a reasonable manner requests to work flexibly provide more guidance on the above steps.

Answer:

The legislation does not require the employer to make a value judgment about the employee’s reasons for seeking flexible working. An employee can make a request to work flexibly for a range of reasons ranging from because they wish to spend more time at home, or because they have parental or caring responsibilities for a disabled relative.

Before 30 June 2014, employers could only be forced to consider requests for flexible working made for the purpose of providing care. However now the approach intended by the legislation, is that the employer should decide whether to grant the request by focusing on their business grounds and whether flexible working can be accommodated, rather than evaluating the employee’s personal circumstances.

Accordingly if an employer receives two requests for flexible working at the same time, one request relating to caring for an elderly disabled relative and the other is to enable the employee to spend more time relaxing, the employer is not required to make value judgements about the most deserving request. The employer must:

  • consider each request in the order in which they were made
  • consider each request in the context of the employer’s business needs
  • consider the impact of the first request, and if it is accepted, take account of the changes this will make to staffing when considering the second request.

Acas guidance suggests, alternatively, that if two requests are received in close proximity the employer may decide to discuss whether some adjustment or compromise by both the employees would enable both requests to be accommodated.

Although employers are not supposed to make value judgments in the context of the flexible working legislation, a sensible employer will bear in mind that some employees have extra legal rights under other legislation. So, for example, an application to care for a disabled family member will give that employee the protection of bringing an associative discrimination claim under the Equality Act 2010 if their request is refused. So it may be that employers will sometimes think it is sensible to place more focus on trying to accommodate a request from an employee who has extra protection because of the nature of their request.

For more information on the claims that employees can make if a request for flexible working is refused see the related Q&A If an employer refuses a request for flexible working what claims may the employee make?.

Answer:

A further application can be made at a later date, but an employee must wait 12 months from the date on which their last application was made before making any further requests unless the employer agrees to voluntarily consider another request within a 12 month period.

The right to request flexible working procedure has been simplified since 2014, but only one application in every 12 months is allowed unless otherwise agreed.

Answer:

An employer can currently only refuse a request for flexible working if they can show that they considered the request reasonably and one of the following business grounds applies:

  • inability to rearrange work among existing staff
  • burden of additional costs
  • detrimental effect on the ability to meet customer demand
  • inability to recruit additional staff
  • detrimental impact on quality or performance
  • insufficiency of work when the employee proposes to work
  • planned structural changes.

(These grounds apply to time off for training requests as well, although there are some additional grounds as explained in the related Q&A What factors can an employer take into account when considering whether to refuse a request for time off for training and if it is refused what claims may the employee make?).

The grounds for refusal potentially give an employer some scope to properly refuse an application for flexible working. However, refusing a request for flexible working may give rise to a sex or disability discrimination claim if it is not handled carefully. An employer should allow requests where they can, on a trial basis where necessary. If they do refuse a request then the facts of each case should be carefully considered and documented, particularly the reasons for refusal. Requests for job shares for example will be especially difficult to refuse on the basis of the above grounds. A bland assertion that ’customers or clients like dealing with one person’ is not enough.

An example is a doctor's receptionist who applies to leave two hours early from work each day to spend more time with her family. There is only one other receptionist and the last two hours of the day are a very busy time as this is when the surgery is open for appointments. There are no other staff available to cover her last two hours of the day. The employer decides that agreeing to this request would place unreasonable pressures on the other receptionist and turns down the request on the following grounds:

  • Inability to rearrange work among existing staff, and
  • the detrimental effect on ability to meet customer demand.

There are further examples of the application of these grounds for refusal set out in the Acas guidance and the case law examples highlighted below also illustrate the emphasis which tribunals place on a full consideration on these grounds.

In Webster v Princes Soft Drinks (unreported, ET/1803942/2004 2005, ET) an employee whose request for flexible working was refused won her claim for indirect sex discrimination. The employee was a senior financial accountant who applied to job share her post. The employer complied fully with the Flexible Working Regulations in its consideration of the request and during the process expressed some concerns about the risk that the different management styles of the job sharers would interfere with their shared management of the employees who would report directly to them. 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.

By contrast in Georgiou v Colman Coyle (unreported, EAT/503/00 13 December 2001, EAT) 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 their profitability. The tribunal found that those concerns did justify the refusal of the employee's flexible working request and the employee did not succeed in her claim of indirect sex discrimination.

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

The Acas guidance and Code of practice on handling in a reasonable manner flexible working requests are available on its website.

Answer:

Hopefully most requests for flexible working will be resolved amicably. However, in the few cases where matters escalate an employee can make a complaint to an employment tribunal, although the tribunal fees may deter some potential claimants.

Claims relating to flexible working are covered by the Acas early conciliation rules which came into force in April 2014. Therefore no employee may submit a claim without an early conciliation certificate confirming that the case was referred to Acas.

The employee can make a number of claims including:

  • that the employer has failed to deal with the application for flexible working in a reasonable manner and/or
  • that the employer failed to notify a decision within the decision period and/or
  • that the application was rejected on the basis of incorrect facts and/or
  • that the employer rejected the application for a reason other than one of the business grounds
  • for unfair dismissal, if they have been dismissed or subjected to a detriment for exercising or proposing to exercise rights under the flexible working provisions (in most cases this will be automatically unfair) and/or
  • that the refusal to allow the request for flexible working (for example by refusing part-time working) amounts to indirect sex discrimination contrary to the Equality Act 2010 or possibly some other form of discrimination based on disability, age or religion etc.

In Stone v Cineworld Cinemas Plc (unreported, Hull Employment Tribunal 24 January 2012, ET) an employee at a cinema in Hull 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 and won a claim of indirect sex discrimination under the Equality Act 2010. 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.

This case highlights how indirect sex discrimination claims can arise when flexible working requests are rejected.

See our Part-time workers Q&As and Sex discrimination Q&As for further information on the related claims an employee may make if a request for flexible working is refused, as there have been a number of sex discrimination claims in this context.

Note that claims relating to the refusal of the request for flexible working must be made within three months of the 'relevant date', that is either the date on which the appeal decision was given, or the date of any procedural breach by the employer. If the claim is simply for failure to honour the flexible working provisions then an employment tribunal can:

  • order reconsideration of the decision
  • award such compensation as it considers just and equitable up to a maximum of eight weeks' pay, capped at the statutory maximum (For latest figures see Statutory rates and compensation limits page).

An example of how the compensation for flexible working relates to other compensation can be drawn from a case involving a record manager, Luisa Berg, and the Notting Hill Music Group which was reported in the press. Her requests for part-time or flexible hours following maternity leave were not taken seriously; she was also lied to about a bonus paid to other staff in her absence. She left and claimed compensation for direct and indirect sex discrimination, failure to consider her request for flexible working hours and failure to provide a written contract of employment. It is reported she was awarded £16,000 for injury to feelings as part of her discrimination compensation, £5,542 for lost earnings, £1,000 for the concealed bonus, £1,600 for failure to provide a written contract of employment, plus the maximum £2,800 for failure to consider her flexible working request.

As an alternative to tribunal proceedings, an employee may bring a flexible working dispute before the Acas arbitration scheme. The scheme is separate to Acas early conciliation and only covers flexible working and unfair dismissal claims. For further information go to the Acas website and our Tribunal claims, settlement and compromise Q&As.

Time limits

Note that claims relating to the refusal of a request for flexible working must be made within three months of the 'relevant date', that is either the date on which the appeal decision was given, or the date of any procedural breach by the employer.

Extensions of time now apply to claims which are referred to Acas under the early conciliation scheme so that essentially the time limit is increased by one month.

Other extensions may be possible but only if the tribunal is persuaded that it was not possible to comply with the initial time limit.

For more information on early conciliation see our Tribunal claims, settlement and compromise Q&As.

Answer:

Employers can consider a request for time off for training from any of their workers. However, certain employees have a right to make a specific formal request which is governed by the legislation.

The Apprenticeships, Skills, Children and Learning Act 2009 inserted a new Part 6 into the Employment Rights Act 1996. Under Part 6 Section 63D qualifying employees have the right to make a statutory application to their employer in relation to study or training. It also provides that ‘the application must be made for the purpose of enabling the employee to undertake study or training (or both)'. The proposed study or training does not have to lead to a qualification, but should improve an employee’s effectiveness at work and the performance of the employer’s business. The right closely follows the model used for agreeing requests under the flexible working arrangements. This right came into force on 6 April 2010 for those employees in businesses with 250 or more employees, but plans to extend it to other businesses in April 2011 did not come into effect.

The Government guidance is available on GOV.UK.

There are similarities with flexible working as the right is to formally request time to train rather than a right to enforce time off. Employers have a duty to consider the requests properly. A request which is refused may also give rise to a claim for breach of the legislation or potentially for age or other discrimination. See the related Q&A What factors can an employer take into account when considering whether to refuse a request for time off for training and if it is refused what claims may the employee make?.

To qualify for this right all applicants must meet the following requirements which are very similar to flexible working requests, that is those who are:

  • an employee (for further details on determining employee status see our Employee status Q&As)
  • have worked for the employer continuously for at least 26 weeks by the application date and
  • have not made another request during the past 12 months
  • not employee shareholders (from April 2013)
  • not agency workers (unless returning from a period of parental leave)
  • not members of the armed forces as they are expressly excluded.

(Some young people do not have the right to request time to train under these regulations. For example, those who are of compulsory school age, or already have a right to paid time off to study or train - under the Employment Rights Act 1996 Section 63A and those children falling within the Education and Skills Act 2008 Part 1).

See the related Q&As Is there a formal procedure to follow when making and responding to a request for time off for training? and What factors can an employer take into account when considering whether to refuse a request for time off for training and if it is refused what claims may the employee make?.

Answer:

The formal procedure to follow for requests for time off for training is similar to that used for flexible working requests. The right only applies for those employees in businesses with 250 or more employees.

Employers can voluntarily consider informal requests for time off for training from any employees without following the procedure summarised below, including requests from those who are not eligible for the new right. If good training systems are already in place these can still be used to request training. However, the procedure set out below will help if problems arise from any rejection of a request.

Key points to note about the right are as follows:

  • Employers should have put procedures in place or adapted existing procedures to ensure that they consider requests properly and comply with the time limits set out below.
  • The right is to request time in relation to training.
  • Employers may wish to provide a template for requests to be made on.
  • Employers can refuse requests if they can demonstrate a good business reason. For example, they do not agree that the training will help improve business performance.
  • Once a training method has been agreed (if any), employers may choose to pay the costs of the training, but they do not have to do so.

The procedure

1. The employee makes a request for time off for training.

The employee will specify in writing (including email or letter) the subject matter of the proposed training or study and:

  • that the application is an application under the Employment Rights Act 1996 Section 63D
  • where and when the proposed training or study will occur
  • who would provide or supervise the training
  • any qualification it would lead to
  • how the employee thinks the proposed training or study would improve their effectiveness in the employer’s business performance
  • the date and method that the employee's last application (if any) was made
  • the application should also be dated.

If the request is valid, but the employer needs additional information the employer should simply ask the employee.

If an employee's request does not include all of the necessary information or they have submitted more than one request within a 12 months the employer may technically consider the request to be invalid.

It is best practice for the employer to explain this to the employee within 28 days. In fact, as the whole procedure is designed to encourage employers and employees to talk to one another (rather than taking technical points), the employer may be well advised to co–operate with the employee to obtain the requisite information to enable the request to be considered.

2. Within 28 days of receiving a valid request the employer must either:

  • accept the request and inform the employee of that decision in writing or
  • meet the employee to discuss the application at a time and place being convenient to both.

Any agreement concluded with the employee at the meeting may be recorded in writing. The employee can take a 'companion' along. If companion cannot attend then the employer must defer meeting to a new time within seven days of original date.

3. Within 14 days of the meeting employer must provide written and dated notification of their decision.

Acceptance

If the request is accepted the employer must include the following details:

  • the subject of the study or training
  • where and when it will take place and over what period
  • who will provide or supervise the training
  • what qualification (if any) the training will lead to
  • whether the training time will be paid or unpaid and how the costs of the training will be met
  • whether the employee will work flexibly whilst undertaking the training.

If the acceptance involves changing the employee's working hours then it must be confirmed that the employee agrees to a contractual variation and over what period.

Revised proposals - agreement

The outcome of the meeting may be that a different training method is more appropriate, or that the employee may attend part of a course they have requested, but not all of it. The employer should confirm the details of this and obtain written evidence of the employee's agreement to this.

Once the training method has been agreed, employers may choose to pay the

4. Rejection

If the application is rejected, the notification must state which grounds for rejection apply (see the question below on factors that may be taken into account) with an explanation as to why those grounds apply and the appeal procedure and the date of the notice.

5. If appealing, the employee must send dated written notice setting out the grounds of appeal within 14 days of the date of rejection of application.

There are no restrictions on the grounds for an appeal which may include disagreement concerning whether the business reason applies or some new information for example, a way of covering the employee’s absence during their training.

6. Within 14 days of receiving the appeal, the parties must meet at a mutually convenient time and place for the appeal meeting and the employee can be accompanied by a companion again.

7. Within 14 days of the appeal meeting, the employer must give written and dated appeal decision. An acceptance must include the information as set out at point 3 above. A rejection must contain the grounds and an explanation as to why the grounds apply.

The companion must be employed by the same employer as the applicant and the companion is entitled to paid time off work to attend the meeting. Employers can always choose to allow a companion who does not work for the same employer (for example a family member) although they do not have to. The companion can address the meeting and confer with the employee, but may not answer questions instead of the employee.

If an employer refuses a request, a further application can be made at a later date, but the employee must wait 12 months from the date on which their last application was made before making any further requests unless the employer agrees to voluntarily consider another request within a 12 month period.

Possible problems for employers

Problems which may arise include the following:

  • Employees who are disgruntled if the employer refuses the request or refuses to pay for the training. Employers who refuse to pay should do so entirely consistently, otherwise discrimination claims may arise.
  • Difficulties may arise with following the procedure exactly. As with the flexible working procedure the steps can be varied where the parties agree. The agreement must be recorded in writing by the employer, dated and sent to the employee. The employer should specify the varied time-limits and confirm the date when any extension ends.
  • Unresolved requests after the appeal process may cause emotive issues in the workplace. In such cases the organisation's usual dispute resolution processes should be followed. This will normally entail attempts to resolve the problems informally, using the organisation's own grievance procedure and complying with the Acas Code of practice on disciplinary and grievance procedures. If this fails external third-party mediation or conciliation, for example Acas, may assist. If all other methods have failed Acas may be able to offer its pre-claim conciliation service or the employee may feel that a complaint to an employment tribunal is necessary.
  • Employees may fail to attend meetings. If they do so more than once without reasonable cause, the employer can write confirming that the request is treated as withdrawn.
  • An employee can withdraw a request at any point before the employer has notified a decision. If an employee withdraws a request, it still counts as a request for the purposes of the 12 month prohibition on making another request.
  • If the agreed training is cancelled due to unforeseen circumstances or they failed to start the training, they can make a further request within 12 months unless this was due to their own conduct.

More information about the procedure is in The Employee Study and Training (Procedural Requirements) Regulations 2010.

Answer:

An employer will only be able to refuse a request for time off for training if they can show that one of the following grounds applies:

  • the proposed study or training would not improve the employee's effectiveness in the business
  • the proposed study or training would not improve the performance of the business
  • inability to rearrange work among existing staff
  • burden of additional costs
  • detrimental effect on the ability to meet customer demand
  • inability to recruit additional staff
  • detrimental impact on quality or performance
  • insufficiency of work when the employee proposes to work
  • planned structural changes during the proposed study or training period.

The last seven grounds are the same as those relied upon by employers in refusing a request for flexible working.

In many cases the employer will accept the employee's proposals for training as set out in their request or propose different training to that proposed by the employee. Some employers may suggest different courses or training in-house rather than externally.

It is important to emphasise that employees cannot go to the employment tribunal because they disagree with the employers’ business grounds for rejecting the request.

Potential claims

An employee cannot make a complaint because they simply disagree with the business grounds relied upon in the rejection of the request. The employment tribunal can examine the facts on which the business reason was based to see if they were correct. The tribunal cannot question the employer’s business reasons. In addition to a complaint based on a breach of the legislation an employee may claim under the discrimination legislation as well if they believe they have been treated less favourably because of their sex, race, age, religion etc.

An employee whose request is refused can therefore make a number of claims including:

  • that the employer has failed to follow the proper procedure dealing with the request and/or
  • that the application was rejected on the basis of incorrect facts and/or
  • for unfair dismissal, if they have been dismissed or subjected to a detriment for exercising or proposing to exercise rights under the time off for training provisions (in most cases this will be automatically unfair) and/or
  • that the refusal to allow the request amounts to discrimination on grounds of sex, race, religion or belief, sexual orientation, disability or age etc.

Time limits

Note that claims relating to the refusal of the request must be made within three months of the 'relevant date', that is either the date on which the appeal decision was given or the date of any procedural breach by the employer.

Extensions of time now apply to claims which are referred to Acas under the early conciliation scheme so that essentially the time limit is increased by one month.

Other extensions may be possible but only if the tribunal is persuaded that it was not possible to comply with the initial time limit.

For information on Acas early conciliation see the Q&A What is Acas early conciliation? in our Tribunal claims, settlement and compromise Q&As.

If the claim is simply for failure to honour the provisions then an employment tribunal can:

  • order reconsideration of the decision by following the procedure correctly
  • award such compensation as it considers just and equitable up to a maximum of eight weeks' pay, capped at the statutory maximum (For latest figures see Statutory rates and compensation limits page).
  • award up to two weeks' pay for failure to allow a companion to attend, also capped at the statutory maximum.
In addition, a part-time worker or an employee on a fixed-term contract may claim that they have been treated less favourably than a comparable full-time worker or permanent employee if their request is refused unless that treatment is justified by objective business grounds.

Answer:

Possible future developments in the area of requesting flexible working are discussed under the following headings:

Brexit

In a referendum on 23 June 2016 the UK voted to leave the EU. Following this vote, it is not yet clear what, if any, changes will be made to employment law. Any EU-derived law will not disappear overnight and if any laws are altered this will depend on the withdrawal terms and will be a lengthy process. The process for leaving  requires an Act of Parliament to trigger a ‘withdrawal notice’ (Article 50). After that there is a maximum two year period in which to negotiate the terms of any withdrawal. The main options for the UK are to join the European Economic Area (EEA) like Norway, or negotiate bilateral agreements with the EU, like Switzerland. In both these scenarios the UK would still have to comply with EU social and employment law.

The majority of family-friendly rights including the right to request flexible working and time off for training originate in the UK, so it is unlikely that these rights would be changed.

For information on what Brexit will possibly mean for general employment law read the blog by our Public Policy Advisor (Employer Relations).

We have also set up a resource hub on our website where relevant resources and details of our ‘Brexit’ activities will be published.

EHRC

The Equality and Human Rights Commission(EHRC) has previously reported that as more requests for flexible working come from women, those who choose reduced working hours also accept reduced status and career prospects, thereby reinforcing the gender pay gap. In their report entitled Working better the EHRC suggested extending the right to request to all employees (which was implemented) and also a formal right to request a return to full time work, to be negotiated subject to business needs. So it may still be that a right to request returning to full time work will be reconsidered by a future government, although this is less likely following the EU referendum.

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Factsheets

Flexible working practices

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

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