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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45315
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have applied for flexible working to move to a 4 day week.

Customer Question

Hi, I have applied for flexible working to move to a 4 day week. Agreed verbally with the line manager/owner who said it was a 'good idea' as my work life balance is out of kilter. Official paperwork handed in. Went on holiday for 2 weeks, and have come back to him saying that he now needs another 3.5 weeks to consider the application. He is considering a reorganisation and needs to think whether a part time (4 day week role) will fit in the new structure.
The flexible working was my last role of the dice to make poor working conditions work for me.
Any thoughts welcome.
Submitted: 4 months ago.
Category: Employment Law
Customer: replied 4 months ago.
On paper I am 'part of the senior management team' but am usually excluded from decisions at that level.
I am under employed, fulfilling a role that is beneath the title.
The company is very inflexible, working at home is frowned upon, quizzed if I am ever sick.
Its not great working conditions, I have tried to make them work by applying for the part time (4 day) week. They would not go for a day at home, so I have applied for the flexibility with the obvious salary sacrifice.
I may today hand in my notice (not an idle threat) but just wanted to find out if I have a case for constructive dismissal.
Customer: replied 4 months ago.
Sorry last thing, Head of HR unofficially told me if I hand in my notice today its probably constructive dismissal. I was going to ask these questions of someone before yesterdays flexible working outcome, but now am determined. Thats it for now, thanks for reading.
Expert:  Ben Jones replied 4 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Customer: replied 4 months ago.
Fantastic, thank you.
Expert:  Ben Jones replied 4 months ago.

Hi there. Apologies for the slight delay. Please can you tell me how long you have worked there for? Thank you

Customer: replied 4 months ago.
Just over 2 years
Expert:  Ben Jones replied 4 months ago.

OK, thank you for your response. As we are practising lawyers and do this in our spare time there may be a slight delay in getting back to you as I am in the final day of a complex trial today so may not be out until late. Rest assured that I am dealing with your query and will respond as soon as I can, no later than tomorrow at the latest. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you for your understanding

Expert:  Ben Jones replied 4 months ago.

Many thanks for your patience. When a formal flexible working request is made, an employer can only reject it on a limited number of grounds. These are:

· Planned structural changes

· The burden of additional costs

· A detrimental impact on quality

· The inability to recruit additional staff

· A detrimental impact on performance

· The inability to reorganise work among existing staff

· A detrimental effect on ability to meet customer demand

· Lack of work during the periods the employee proposes to work

In addition, the employer has a duty to explain their rejection in writing. They must state why the specific business ground applies in the circumstances and include the key facts about their decision. These should be accurate and relevant to the reason used.

However, when selecting the ground for refusal the test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged.

Therefore, if the employer has not relied on one of the set grounds to justify their refusal, or the facts they have used are incorrect or unreasonable, the decision can be appealed first before a formal grievance is raised. If that does not help, a claim can be made to an employment tribunal. The available grounds to challenge their decision are:

· The employer failed to hold a meeting, notify their decision or offer a right of appeal

· The reason for refusal was not for one of the allowed reasons

· The rejection was based on incorrect facts

The claim should be presented to the tribunal within 3 months of either the procedural breach or of the date on which the employee is notified of the appeal decision.

This is your basic legal position. I have more detailed advice for you in terms of the steps you must take if you wish to pursue this further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45315
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 4 months ago.
Hi Ben,
Thank you for you reply. One Question:
I may have read this as a contradiction, can you please clarify the point on 'reasonableness' - The employer needs to be reasonable or not?
"The test does not create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged.Therefore, if the employer has not relied on one of the set grounds to justify their refusal, or the facts they have used are incorrect or unreasonable,..."My employer has asked to make a first response after the 28 day deadline of my request - at which point they still may not have an answer. Is this something I can question them on please.Many thanks
Expert:  Ben Jones replied 4 months ago.

Hi there, The Acas Code suggests that employers should consider requests carefully, looking at the benefits of the requested changes for the employee and the employer's business and weighing these against any adverse business impact of implementing them. This is just a recommendation though. In selecting the ground for refusal the wording of the statute suggests that the test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not on the face of it import any question of reasonableness into this judgment. It would appear that, assuming one of the eight reasons is given, an employee could only challenge the employer's decision if the employer's view is based on incorrect facts.

Customer: replied 4 months ago.
Ben, thanks for the answers yesterday. It seems as though they could probably say structure changes are planned so I'd struggle there. Otherwise its down to me to prove bullying, which seems like a tough route to take. Probably best to put it down to experience and move on gracefully.
Expert:  Ben Jones replied 4 months ago.

In the end that is a decision only you can make. You do have ACAS available for free negotiations but arter that you may wish to leave it rather than starting pay out for tribunals

Customer: replied 4 months ago.
Thanks for your help with this.
Expert:  Ben Jones replied 4 months ago.

You are most welcome, all the best

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