The Potential Pitfalls of Mishandling a Flexible Working Request

In this second of two articles on flexible working, we take a look at the complaints and remedies which may be available to an employee in circumstances where an employer has mishandled a statutory flexible working request. We also explore some of the potential non-legal consequences of mishandling a request.

Legal Complaints and Remedies

Procedural failings – Claim under section 80H(1) ERA 1996

An employee who has made a request under the Statutory Scheme may bring a claim to the Employment Tribunal under section 80H(1) ERA 1996 on the basis that:-

• the employer failed to deal with the request in a reasonable manner
• the employer refused the request without consulting the employee
• the employer failed to notify them of the decision within the decision period
• the employer rejected the request for a reason other than one of the statutory grounds
• the employer’s decision to reject the application was based on incorrect facts
•  the employer treated the request as withdrawn but it was not entitled to do so.

When considering a claim under this section, a tribunal cannot question the commercial rationale or business reasons behind an employer’s decision to refuse a request neither can it substitute its own decision as to whether the request should have been granted. This severely limits the scrutiny to which an employer’s decision may be granted.

Where the tribunal does find a claim well founded, it must make a declaration to that effect and may make an order for:-

• reconsideration of the request and/or
• an award of compensation of such amount as it considers just and equitable up to a maximum of eight weeks pay (subject to a statutory cap).

Unlawful Detriment – Claim under section 47E(1) ERA 1996

An employee may also bring a claim for unlawful detriment under section 47E(1) ERA 1996 on the grounds that they have suffered a detriment short of dismissal in circumstances where:-

• The employee made, or proposed to make, an statutory request for flexible working
• The employee brought proceedings against the employer under section 80H of ERA 1996 or alleged the existence of any circumstance which would constitute a ground for bringing proceedings.

If a claim is upheld, the Tribunal may make an award of compensation, the amount of which shall be such which it considers just and equitable in all the circumstances having regard to the infringement to which the complaint relates and any loss suffered by the Claimant which his attributable to the act or failure to act.

Automatic Unfair Dismissal

Section 104C ERA 1996 provides that it shall be automatically unfair to dismiss an employee if the reason or principal reason for dismissal is that the employee made or proposed to make a flexible working request under the Statutory Scheme or brought proceedings against the employer in respect of such a request. If a claim is upheld, the Tribunal can, amongst other things, make an award of compensation which typically includes a basic award and a compensatory award.

Discrimination Law

Where a flexible working request is refused, eligible employees may have redress under discrimination law. Typically claims for breach of the statutory right to request flexible working are accompanied by claims for sex, race or disability discrimination under the Equality Act 2010 (where for example, an employee has requested to change their working hours based on childcare commitments, because of religious requirements or because they are disabled). Such claims can provide an effective remedy for employees and employers will need to be mindful of these potential claims when considering requests for flexible working.

Compensation for discrimination can include compensation for financial loss, injury to feelings and personal injury. There is no upper limit on the amount that can be awarded.

Constructive Dismissal

Employees may have a potential claim for constructive dismissal where there has been a repudiatory breach of the employment contract on the part of the employer in dealing with a flexible working request. An employer may commit a repudiatory breach where in dealing with a request, it conducts itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence. Such claims are often accompanied by a claim for discrimination.

Other Potential Consequences of Mishandling a Flexible Working Request

Mishandling flexible working requests can have other non-legal consequences for a business including the following:-

• A breakdown in its relationships with its employees
• Employee dissatisfaction and decreased morale resulting in a lack of productivity and efficiency
• Employees seeking employment with businesses with more flexible working structures which can be costly in terms of both recruitment and training
• A negative impact on the Company’s reputation which may hinder efforts to attract and retain diverse talent.

Considerations

It is often considered that the statutory right to flexible working lacks teeth because tribunals have very limited power to scrutinise an employer’s decision and can only make very low awards of compensation. However, this approach does not take into account the interrelationship between flexible working and other forms of statutory protection afforded to employees. It also fails to consider the non-legal pitfalls which can be associated with mishandling a request. It is crucial therefore that employers carefully consider each request for flexible working ensuring that the request is considered not only in line with the Statutory Scheme and the Acas Code but also other legislation including, but not limited to, the Equality Act 2010.

How Can Pinney Talfourd Help?

Our Employment team has extensive experience of advising both employers and employees on all aspects of flexible working including on claims involving flexible working requests. If you would like advice on any aspect arising out of this article or on any related matters, then please contact Charlotte Buck or Alex Pearce.