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, you may be able to make a Tribunal claim if:
- Your employer did not give you an answer within three 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’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.
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 you 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 with your employer to see if they allow appeals. Even if they do not say they allow appeals, you should appeal anyway.
An appeal will give you the chance to put forward your arguments again, show that you know your rights, and if you do need to take things further, it will demonstrate that you gave your employer every chance to discuss their refusal and negotiate.
It would also be helpful to ask for clarification on your employer’s rationale (if you think your employer has been too brief in their explanation for refusal).
It is good practice for someone independent and more senior to decide the appeal or chair the appeal meeting, but 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. 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.
Failure to put in a grievance might reduce any award a Tribunal made if you had a claim for discrimination under the Equality Act, so if you feel you’re suffered discrimination it would be important to mention this and explain your reasons.
Raising a grievance will also give you another chance to sort things out with your employer.
Making a claim 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.
A breach of statutory procedure can happen where the employer:
- Fails to deal with the request in a reasonable manner
- Fails to notify the employee of their decision with the three month period
- Rejects the request for a reason other than a ‘permitted reason’
- Rejects the request based on incorrect facts
- Withdraws the request without being entitled to do so
Tribunals cannot question the business rationale of the employer, or make change your employer’s decision. 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
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 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).
If you wish to submit a claim, there are strict time limitations to do so. You must contact ACAS to start early conciliation within 3 months of your employer’s decision to refuse your request, or within 3 months of the expiration of your employer’s 3-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.
For further details of the process for bringing an Employment Tribunal claim please see our articles on starting a claim.
Please not 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 and the relevant time limits.
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 it in the Employment Tribunal (see above).
You should think carefully before agreeing to use the 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.
There’s no point in appealing against my employer’s decision. I know that they will just make the same decision again.
It’s true that if you appeal, the appeal meeting could be with exactly the same manager as before. There is no requirement for different people to attend.
However, it is still worth appealing as it gives you the chance to put your case again, show that you know your rights and are serious, and if you do need to take things further, will demonstrate that you gave your employer every chance to negotiate with you.
The internal appeal process is one of the reasons you need to leave plenty of time for your flexible working request.
I have a management position and my employer says this has to be a full-time job, and if I want to work part time I should take a more junior role.
Your employer does not have to offer you a different job. Your right is to request flexible working in your original job. You should think carefully about what your employer’s reasons are – it is not sufficient for them just to say it has to be full-time, there needs to be a permitted business reason.
If you go through the flexible working procedure, your employer must give you a written decision and can only turn you down for business reasons. However, you can negotiate with them as part of the process, explaining which parts of your job might be done by someone else, for example, and discussing the form of the job you envisage doing on a part-time basis. Alternatively, you might feel it is perfectly possible for you to do all of your job on a part-time basis with a job share partner, or simply that the business will operate well with a part-time manager.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.