Precedent 8: Refusal of a flexible working request at the end of maternity leave

Refusal of a flexible working request at the end of maternity leave where the employee asked for change of hours to accommodate nursery pick up and is therefore unable to return because of caring responsibilities and resigned following refusal – indirect sex discrimination and constructive unfair dismissal.

Page contents

• Example Tribunal Claim Form – Box 8.2
• Actions complained of
• Applicable Law
• Additional compensation
• Comments on draft claim
• Variations
• Footnotes

This precedent covers these issues:

• Refusal of request to work part-time.
• Breach of the Flexible Working Request procedure.
• Indirect sex discrimination.
• Constructive unfair dismissal.
• Additional compensation.

The right to request flexible working under the Flexible Working Regulations applies to all employees and is available from an employee’s first day of employment. You have the right to submit up to two flexible working requests to the same employer during any 12-month period, provided that the outcome of the first request has been finalised.

If your request for flexible working is refused, or your employer treats you unfairly in relation to your request, you may also experience unlawful discrimination under the Equality Act.

Additionally, employees who have been employed for 2 years or more have the right not to be unfairly dismissed. If you find that you are forced to resign due to a refusal of a flexible working request, you may also be able to make a claim for constructive unfair dismissal, depending on your employer’s reason for the dismissal.

Example Tribunal Claim Form – Box 8.2:

1. I started work for the Respondent on 28 August 2019 as a sales representative in its sales department.
   
2. On 22 December 2023, I began a period of statutory maternity leave.
   
3. As my maternity leave was due to end on 21 July 2024, I arranged childcare in advance for my child at a local nursery to begin on or before this date. The nursery’s opening hours are 9.00 am until 5.00 pm. It was not possible to arrange nursery provision until 5.30 pm so that I could continue working my usual hours of employment. There were no suitable alternatives to have my child collected from nursery. I therefore decided to request a change in my working hours to accommodate collecting my child from nursery.
   
4. On 8 April 2024, I wrote to my head of department, Charlotte Williams, to make a formal request for a change in working hours in accordance with the Flexible Working Regulations 2014. Ms Williams delayed on several occasions to have a meeting with me. She finally held a meeting with me to discuss my request on 17 June 2024, over 2 months after I made my request. At this meeting they said that that flexible working hours were not offered to employees in my role and who had recently returned from maternity leave and that collecting my child from nursery was not a good reason for making a flexible working request. She promised to confirm all this in a letter, but she never did.¹
   
5. I appealed to the CEO of the Respondent, Linda Johnson, by letter dated 21 June 2024. Ms Johnson wrote to me on 28 June 2024 rejecting my appeal. They did not discuss it with me before sending the letter. The letter simply stated that Ms Johnson did not think a variation in working hours was suitable for sales representatives and that my flexible working request was now treated as withdrawn.²
   
6. My partner was unable to collect my child from nursery and as I could not make any other satisfactory arrangements, I had no choice but to resign. I sent in my resignation letter on 1 July 2024.
   
7. I believe it is perfectly feasible for my job to be done on varied hours, [and I was willing to undergo a trial period to make the change easier]³. [Also, I had said I was willing to be flexible and take urgent calls and check my e-mails when I was out of the office.]⁴
   
8. I believe that the refusal to allow me to vary my working hours was indirect sex discrimination contrary to the Equality Act 2010.
   
9. Further, I believe the refusal of my request to vary my working hours was a fundamental breach of the implied term of trust and confidence. I therefore believe I was constructively dismissed and I claim unfair dismissal contrary to s98(4) of the Employment Rights Act 1996.
   
10. I also believe my constructive dismissal was indirect sex discrimination contrary to the Equality Act 2010.
    
11. [Further, in respect of my flexible working request, my employer failed to comply with the requirements under section 80G of the Employment Rights Act 1996 in that:
    
    a) Ms Williams failed to consult with me about my flexible working request before refusing my application;
    b) Ms Williams failed to notify me of the decision regarding my application within the decision period of two months from the date of my application;
    c) Ms Williams failed to deal with my application in a reasonable manner; and
    d) the letter rejecting my appeal did not specify one of the permitted grounds for refusal set out in the Employment Rights Act 1996, nor did it contain sufficient explanation of its grounds.
    
    I request compensation under the Flexible Working Regulations 2014 and the Employment Rights Act 1996 for this.]⁵
    
12. I also claim notice pay,⁶ statutory maternity pay, accrued and untaken holiday pay, loss of earnings, loss of pension, loss of non-cash benefits, expenses⁷ and injury to feelings.⁸

Notes

Actions complained of

Always identify the actions complained of first. Here, these are:

• Refusal of the claimant’s request to vary her working hours.
• Rejection of the claimant’s appeal.
• Failure to comply with the requirements set out under section 80G of the Employment Rights Act 1996 when refusing the flexible working request.
• Indirect sex discrimination.
• Constructive and unfair dismissal.

It is very important not to miss tribunal time limits. These can be complicated. You may want more information on tribunal time-limits.

Applicable law

Claims for unlawful refusal of a request under the Flexible Working Regulations 2014
The Flexible Working Regulations 2014 give the claimant an independent right to have their request to vary their working hours formally considered. However, there is no automatic right under those Regulations to have the request agreed.

The employee can complain to a tribunal if their employer:

• fails to deal with their application in a reasonable manner;
• fails to consult the employee before refusing or seeking to modify the request;
• fails to notify them of the decision on their application within the decision period;
• fails to rely on one of the statutory grounds when refusing their application;
• bases its decision on incorrect facts; or
• treats the application as withdrawn when the grounds entitling the employer to do so do not apply,
• (see further below).

Failing to consult the employee before refusing or seeking to modify the request

Shortly after the employer has received the employee’s written flexible working request, unless the employer decides to agree to the employee’s flexible working request in full, the employer (or someone at the company who is able to authorise the flexible working request) must consult with the employee about the application before refusing the request. The ACAS codes provides the employer should do this by inviting the employee to a consultation meeting.

The employee should have a reasonable amount of time to prepare for the discussion and should be notified in advance of the time and place of the meeting.

During the meeting, the employee and the employer (or someone who could approve the employee’s flexible working request) should reasonably consider and discuss the employee’s request, for example, they might discuss any potential benefits or other impacts of the request and any practical considerations.

If the employee’s flexible working request cannot be accepted in full, there should be a discussion about whether any modifications can be made to the original request and if there are any alternative flexible working options.

Failing to notify of the decision within the decision period

The “decision period” is a period of two months from:

• the date of the application; and
• the date of the appeal (if applicable),

(unless extended by agreement between the employer and employee).

Relying on one of the statutory grounds for refusing an application

An employer can only refuse the application on one of the following grounds:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise 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; and
• such other grounds as the Secretary of State may specify by regulations.

Treating the application as withdrawn

An application can only be treated as withdrawn if either:

• the employee fails to attend the meeting arranged by the employer to discuss the application, and the following meeting, without good reason; or
• where the employer allows the employee to appeal, the employee has failed to attend the meeting to discuss the appeal, and the following meeting, without good reason;

AND the employer has notified the employee that they have decided to treat this conduct as a withdrawal of their application.

Indirect sex discrimination under the Equality Act 2010

Under the Equality Act 2010, sex is a protected characteristic. Indirect discrimination occurs where an employer has a policy or practice that applies the same to everyone, and may not be intended to treat anyone less favourably, but disadvantages a group of people with a particular protected characteristic. This is particularly relevant where employers have a policy against flexible working, as it can disadvantage women with childcare responsibilities. Further information on indirect discrimination here.

If your employer is found to have discriminated against you, an order can be made for compensation. Further information on calculating compensation in discrimination claims here.

Constructive dismissal and unfair dismissal under the Employment Rights Act 1996

In most circumstances, you can only bring a claim for constructive dismissal or unfair dismissal if you have been employed by your employer for at least 2 years.

Constructive dismissal can be claimed when an employee is forced to leave their job because of the conduct of their employer. This conduct needs to be a significant breach of the contract of employment, which can include unlawful discrimination (as set out above). Further information on claiming constructive dismissal here.

If an employee resigns without notice due to fundamental breach of their contract, they can claim notice pay.

An employee can be regarded as unfairly dismissed if the reason for dismissal (or principal reason, if there is more than one) is an application for flexible working under the Flexible Working Regulations. Further information on claiming unfair dismissal here.

In cases of unfair dismissal, a claimant can receive compensation, which is made up of a basic award and compensatory award. Further information on calculating compensation in unfair dismissal claims here.

Additional Compensation

Failure to pay notice

Under the Employment Rights Act 1996, an employee is entitled to be paid full pay for their notice period if they are constructively dismissed, as the claimant was in this case. The claimant here was employed for five years (since October 2018), so she will be entitled to at least her statutory minimum notice entitlement of five weeks’ pay. If the notice period under her contract is longer than five weeks, she will be entitled to the number of weeks’ pay referenced in her contractual notice period.

You might find it helpful to use a table of legal rights often applicable in areas relevant to working families.

Failure to pay statutory maternity pay

Under sections 86 – 89 of the Employment Rights Act 1996, during her notice period, the claimant will generally only be entitled to statutory maternity pay (or no pay if the claimant has exhausted their entitlement to statutory maternity pay). However, where the claimant’s contractual notice period is at least one week shorter than her statutory notice period, she might be entitled to full pay for her notice period. This is a complicated area, so it may be worth seeking advice if you receive less than full pay for your notice period.

The claimant was employed for five years (since October 2018) and therefore her statutory minimum notice entitlement is five weeks’ pay. As the claimant has taken 30 weeks’ statutory maternity leave (from 25 January 2023 to 23 August 2023), and then worked 6 weeks post-maternity leave before she was constructively dismissed, she would be entitled to statutory maternity pay for a maximum of 3 weeks (as this is the remainder of the maximum of 39 weeks’ statutory maternity leave that she can take).

You might find it helpful to use a table of legal rights often applicable in areas relevant to working families.

Injury to feelings

The claimant may also be able to claim compensation for the emotional distress caused to her as a result of the dismissal by her employer. This is known as injury to feelings. An award for injury to feelings is meant to reflect how upset the employer made the claimant feel, not to punish the employer for how badly they have behaved. For this reason, it’s important for you to give evidence to the Tribunal about what happened to you, and how the discrimination affected you and made you feel. It would be beneficial in this situation to speak with friends and family, your doctor or other medical professionals you may have spoken to, to gather evidence of the impact the dismissal has had on you from an outside perspective.

Information on how to calculate an estimated injury to feelings award here.

You might find it helpful to use a table of legal rights often applicable in areas relevant to working families.

Comments on the claim drafted above

Paragraphs 1 – 7 contain the facts. Paragraphs 8 – 12 contain the law.

Paragraphs 6, 9 and 10 can be omitted if the claimant did not resign. Paragraph 12 would also be amended to claim only notice pay.

Paragraph 7 mentions that the claimant did offer to be very flexible, by checking e-mails from home. It is worth putting it into the tribunal claim if the claimant did make this kind of offer, as it makes it harder for the employer to justify refusing the claimant’s request to vary their working hours. However, there is no obligation to make this offer to your employer, nor should an employer generally expect employees to do so.

Paragraph 9 mentions “s98(4)” specifically to make it clear that it is talking about ordinary unfair dismissal here rather than any kind of automatic unfair dismissal (which is dealt with separately, under paragraph 10).

Except where explained in these comments, the above precedent does not cite the precise sections applicable to most of the claims. This is because the law is particularly difficult in this area and if you leave something out or get a section number wrong, it may cause problems later.

Variations

A formal request was made under flexible working regulations, but the regulations were correctly followed by the employer

If the employer correctly follows the requirements set out in the Employment Rights Act 1996 but refuses the request, paragraph 11 in the above precedent would be omitted. However, the claimant may still be able to make an alternative claim for indirect sex discrimination, unfair dismissal and the additional claims reference in paragraph 12 above.

In the case here, the claimant can claim separate compensation under the Flexible Working Regulations because the procedure itself was not followed in several respects. The relevant rules are contained in:

• the Flexible Working Regulations 2014; and
• sections 80F – 80I of the Employment Rights Act 1996.

There are also claims for indirect sex discrimination under the Equality Act 2010 and constructive unfair dismissal under section 98(4) of the Employment Rights Act 1996.

No formal request is made under the flexible working regulations and the informal request made by the claimant is refused

It is important to remember that there is no automatic right under the Flexible Working Regulations to have a flexible working request agreed – the request only has to be formally considered by the employer. In this situation, the claimant could still bring a claim for indirect sex discrimination under the Equality Act 2010. For such a claim, paragraph 11 in the above precedent would be omitted and paragraphs 4 and 5 would need to be adjusted to accurately describe the informal request made. Working Families does advise that eligible employees should use the formal procedure to make requests under the Flexible Working Regulations wherever possible.

Footnotes

¹ This paragraph and the following paragraph should be amended as appropriate if the employee made an informal request to vary their working hours (e.g. they did not follow the formal procedure under the Flexible Working Regulations).

² This paragraph and the above paragraph are setting out the facts that fit the grounds for complaining about the employer’s non-compliance with the process for an application under the Flexible Working Regulations (see more details about the grounds at “Applicable law”).

³ If an employer refuses to allow a trial period, there may be grounds to argue that they had failed to deal with the application in a reasonable manner (see more detail on this below).

⁴ This statement may assist in demonstrating that the employer’s refusal of the flexible working request was not reasonable. However, there is no obligation to make this offer to your employer, nor should an employer generally expect employees to do so.

⁵ This paragraph may be omitted as appropriate if the employer correctly follows the requirements of section 80G of the Employment Rights Act 1996, or if the employee did not use the formal procedure under the Flexible Working Regulations to request the variation in working hours.

⁶ This head of claim would not apply if the employee had already exhausted all of her statutory maternity leave (a maximum of 39 weeks). Please see further details below.

⁷ Expenses could include medical bills for injury resulting from the discrimination (e.g., depression), costs associated with seeking new employment, the cost of additional training if you cannot obtain equivalently-paid employment within a reasonable time or expenses incurred in setting up a business (if you reasonably choose to do so instead of seeking employment elsewhere).

⁸ Further information on these claims can be found here.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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