What to do if your flexible working request is refused

This page details what steps you can take if your employer refuses your flexible working request. For more information on making a flexible working request, see our page on Flexible working and the right to request.

Unfortunately, there is no right to work flexibly and not every request will succeed. Sometimes, an employer’s refusal will be reasonable and valid. However, if you made a flexible working request because of caring responsibilities, you will have the additional protection from discrimination provided by the Equality Act 2010.

You may be able to make a Tribunal claim in a number of circumstances if:

• Your employer did not give you an answer (including to any appeal) within two months (unless this was extended by agreement);
• Your employer’s reason for refusing is not a ‘permitted reason’ (see below);
• Your employer’s reason for refusing is not factually correct (e.g. their reason is not genuine);
• Your employer did not deal with your request in a reasonable manner;
• Your employer failed to consult with you before rejecting your request; and/or
• Your employer treated the application as withdrawn when there were no grounds to do so.

Your employer’s reason for refusing your request also cannot be discriminatory. For instance, it has been successfully argued that, because women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can be indirect sex discrimination.

You are also protected under the Equality Act if you are making a flexible working request because of a disability. See Discrimination below.

If you are dismissed or subjected to a detriment for making a flexible working request, you may also have additional claims against your employer, see Potential Claims below.

You may wish to share our Flexible Working Factsheet with your employer to help them understand the law on flexible working requests.

What are the permitted reasons?

The permitted business reasons for an employer to refuse a request are:

• 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 you propose to work.
• Planned structural changes.

If it is not clear which business ground your employer has chosen to rely on, it would be helpful to check whether one of the above reasons is referred to in their response. To note, it is always useful to keep a record of all conversations with your employer and to put things in writing wherever possible in case things do go further.

If you think your employer has wrongly turned your request for flexible working down, there are a number of different options open to you if you wish to take further action, which are set out in further detail below.

Appeal the refusal

There is no legal right to appeal a flexible working request, but you should check your employer’s flexible working policy to see if they allow appeals. Even if there isn’t an appeal process, you can write to your employer and ask for an appeal meeting and set out the reasons for your appeal in writing.

It is important to note that if your employer does allow appeals, the appeal must also be concluded within the original two month time limit. You can agree an extension to this two month decision period with your employer and we would recommend doing this is in writing.

There are many positive reasons to appeal a decision to refuse your flexible working request. An appeal:

1. gives you the chance to put forward your arguments again in writing;
2. allows you to address any concerns your employer raised in their refusal;
3. demonstrates to your employer that you know your rights;
4. is an opportunity to mention that you need a change to your working pattern because of caring responsibilities or because of a disability (if you didn’t mention this in your earlier application) and explain that the Equality Act 2010 is therefore likely to apply to this request and appeal. This alone can be enough to nudge your employer to reconsider the request.

It would also be helpful to ask for clarification on your employer’s rationale or reasons for refusing your request e.g. if you think your employer has been too brief in their explanation for refusal.

As part of your appeal, we recommend asking for your employer to consider a trial period to see if their concerns can be resolved. You can also suggest adjustments to your application to address their concerns. If your employer sticks to their refusal, and you need to take things further and bring a claim in the Employment Tribunal, the fact that you appealed will demonstrate to the Tribunal that you gave your employer every chance to discuss their refusal and negotiate with you. 

It is good practice for someone independent and more senior to decide the appeal or chair the appeal meeting, and whoever does so should have the authority to overturn the original decision.

There is an ACAS guide that sets out what employers/employees should do when dealing with flexible working requests.

It may be helpful to check that your employer has followed the procedures required and to help you in your arguments going forward if your employer rejects your appeal. While there is nothing unlawful in your employer failing to do these things (the code uses the word “should” for things that are recommended but not legally required), a Tribunal would take into account whether the employer had followed these steps.

Please see our Draft Appeal Letter you can use as a template:

For tips on good arguments to make to your employer during the appeal, see our article on negotiating flexible working.

Raising a Grievance

If your employer does not allow for appeals, or if your appeal is unsuccessful, and you feel your request was turned down unfairly (e.g., for a discriminatory reason), the next step would be to raise a grievance.

To raise a grievance means to put your complaint in writing and explain the law that has been breached – this should be sent to your employer without unreasonable delay.

Failure to put in a grievance might reduce any compensation award a Tribunal made if you had a subsequent claim by up to 25% e.g. for discrimination under the Equality Act.

If you feel you’re suffered discrimination it would be important to mention this and explain your reasons e.g. if your employer has refused your request to flex your hours around childcare, you would say that this impacts on you due to your childcare responsibilities and that this could therefore be indirect sex discrimination as it is more likely to impact women than men in the organisation and it impacts you. If your employer has turned it down because of a blanket policy on not allowing part time workers, this again could be indirect sex discrimination. If you have requested this because of a disability, rejecting this request could amount to disability discrimination.

Raising a grievance will also give you another chance to sort things out with your employer.

Potential Claims in the Employment Tribunal

If your employer has refused your flexible working request, you may be able to challenge their decision in an Employment Tribunal if your employer breached the statutory procedure or if the refusal amounts to unlawful discrimination. You will also have potential claims if you are dismissed for making a statutory flexible working request or if you are subjected to a detriment for making a statutory flexible working request. We will deal with each potential claim below.

Breach of Flexible Working Regulations

Employees who made an application under the statutory flexible working procedure may bring a claim before the Employment Tribunal on the basis that the employer:

• Fails to deal with the request in a reasonable manner
• Fails to notify the employee of their decision with the two month period
• Rejects the request for a reason other than a ‘permitted reason’
• Rejects the request based on incorrect facts
• Fails to consult with you before rejecting your request
• Withdraws the request without being entitled to do so

A claim on the first 5 grounds above can only be brought once the employer has notified you of its decision; or the decision period applicable to the application, including any agreed extension period, has ended. A claim on the sixth ground, out of the employer’s treatment of an application as being withdrawn, can be brought as soon as notice to that effect is given to you. Section 80H of the Employment Rights Act 1996 (as amended by the Employment Relations (Flexible Working Act 2023)) sets out the potential claims where there have been procedural failings by the employer.

The Tribunal is limited to:

• Reviewing the procedure followed by the employer.
• Considering whether the request was taken seriously.
• Considering whether the decision was based on correct facts.
• Considering whether the reason given falls within the permitted grounds.

A tribunal in a claim for procedural failures under the Flexible Working Regulations cannot question the business reasons or commercial rationale or indeed fairness behind an employer’s decision to refuse a request. This means the employer’s decision will not be scrutinised. This is different from discrimination claims related to flexible working where the tribunal can look in more detail at the rationale. But a Tribunal may be able to:

• order your employer to reconsider the request
• award compensation to be paid by the employer, up to a maximum of 8 weeks’ pay (capped at the statutory maximum, £700 per week from 6 April 2024).

Because the remedies are limited, and making a claim to the Tribunal can often lead to a breakdown in the employment relationship, submitting a claim for a procedural breach of the Flexible Working Regulations alone should be a last resort that should only taken after exhausting the other steps we have detailed in this advice (wherever possible and time permitting).

The rights and protections under the Statutory Flexible Working regime alone are relatively modest. This is because: (a) Employment Tribunals can’t analyse employers’ decisions in detail; (b) there are limited grounds on which you can bring a complaint for a breach of the regulations; and (c) the maximum compensation that can be awarded for breach is 8 week’s pay capped at the statutory maximum, currently £700 per week from 6 April 2024.

It is for this reason that it is important to look at your request and any refusal and any potential claims along side the protection from discrimination provided by the Equality Act 2010 or other legislation.

Given that the Flexible Working framework only provides limited protection, there is an important relationship between flexible working requests and other laws that provide stronger protection for employees.

There could be scenarios where the employer correctly follows the above requirements but still refuses your request, and yet you may still have higher value claims for: (i) discrimination (ii) unlawful detriment; or (iii) unfair dismissal, if the circumstances apply.

Discrimination

If your request was needed because of caring responsibilities or because of a disability then it is likely that the Equality Act 2010 would apply and you may have potential discrimination claims if your request is refused. See our page on Flexible Working and Discrimination for more details.

If the refusal of your flexible working request or any part of the process amounts to unlawful discrimination you may have a claim under the Equality Act 2010.  Even if your employer has followed the administrative process to the letter, a claim for discrimination can also be brought in respect of the process, and compensation in discrimination claims tend to be higher than other claims. In summary, the tribunal will make an award for your loss of earnings which are not subject to a statutory cap or limit (and so could be higher than unfair dismissal) and you will also be given an award for injury to feelings. See our page on compensation.

Unlawful Detriment

Your employer should not treat you unfairly (i.e. cause you detriment) because you make or propose to make an application for flexible working. Detriment may include, for example, reducing your hours or overlooking you for promotions. If you experience detriment following a making flexible working request, you may have a potential claim for unlawful detriment. Section 47E of the Employment Rights Act 1996 provides that an employee has the right not to suffer a detriment short of dismissal where they have made a request for flexible working or where they intend to bring proceedings against their employer for a breach of the Flexible Working Regulations.

Unfair Dismissal

It is automatically unfair to dismiss you (i.e. to terminate your employment, with or without notice), if the reason or principal reason is due to one of the following grounds: (a) Your make or propose to make, an application to request a variation to your contract to allow for flexible working; or (b) You bring proceedings against your employer, or allege the existence of any circumstance which would constitute a ground for bringing proceedings. See our page on unfair dismissal for more information.

Constructive Dismissal

If you have no choice but to resign as a result of the refusal of your flexible working request, this could amount to a ‘constructive dismissal’.  Constructive dismissal occurs where an employee resigns because the employer breaks their contract in a very serious way. We recommend taking legal advice urgently if you are considering resigning as this is a very difficult claim to bring and would be a last resort.

Bringing a Claim in the Employment Tribunal

If you wish to submit a claim, there are strict time limitations to do so. You must first contact ACAS to start early conciliation within 3 months less 1 day of your employer’s decision to refuse your request, or within 3 months less 1 day of the expiration of your employer’s 2 month time period to make a decision on your request. If you have a discrimination claim, you need to bring it within 3 months less 1 day of the act complained of. You will then need to use the conciliation certificate and bring a claim in the Employment Tribunal within the time limit.

For further details of the process for bringing an Employment Tribunal claim please see our articles on starting a claim.

Please note that tribunal claims can be expensive and long, and there is no guarantee of success, so this step should be considered cautiously. It is almost always best to try to resolve the issue with your employer.

If you are considering bringing a claim, we recommend that you seek advice in order to fully assess which claims you may be able to bring, the potential compensation you could be awarded and the relevant time limits.

Have a look at our example of claim brought in the employment tribunal in a case where the employer refused flexible working.

ACAS Arbitration

As an alternative to the Employment Tribunal, ACAS has an arbitration scheme for resolving flexible working disputes. The scheme is voluntary and both the employer and employee must agree to take part.

Arbitration uses an impartial person (an ‘arbitrator’) to consider both sides of an argument and make a decision based on the evidence presented. Arbitration might be preferable to going to taking legal action and going to an employment tribunal as it is informal, confidential, and free.

You can use the arbitration scheme only if your claim is that the employer hasn’t followed the statutory procedure or has rejected the request on incorrect factual grounds.

If there is a claim for discrimination, you would need to make your claim in the Employment Tribunal (see above) after following the rules on ACAS conciliation.

You should think carefully before agreeing to use the ACAS arbitration scheme. This is because if you choose the scheme, you won’t have the right to go to an Employment Tribunal if you do not agree with the outcome of arbitration. If you have another claim (e.g., discrimination), arbitration would not be a good option. You should seek advice on whether or not this is the best option for you.

Frequently asked questions

Here are some of the most common questions about flexible working that we receive on our helpline.

You might also find our Flex Request Masterclass video useful.

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.

• 

  Would your employer benefit from support from Working Families?

  Would your employer benefit from some support & guidance from Working Families? If you would like to make your employer aware of how Working Families can help them, we have an introduction letter template available that you can give to the relevant person in your organisation.