Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Why do you want to change and how long have you worked there for?
Customer: Hi, firstly my husband and I have sold a property that we rented out so I don,t have to work so many hour,s , and secondly I started work there in 2001
Ben Jones :
The right to make a flexible working request applies to any employee who has been employed by the employer for at least 26 weeks.
Examples of the changes that can be applied for in a flexible working request include:
- A change to working hours
- Change to working location
When a formal 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. So you are not able to force an employer to allow your request for flexible working and they have the final say on this – regardless of whether a solicitor gets involved or not, that is the legal position.
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.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
Customer: Thank you that information will be of great help, I feel that they will use the inability to reorganise work among remaining colleagues, this is because of bad management practice and favouritism concerning the manager involved. Other,s have just been allowed to drop or change contracts as they chose with out going through the procedure you mentioned. Will I be able to do anything about that?
Ben Jones :
the fact that others have been allowed to change their hours will not necessarily give him any better rights as long as the employer could still show one of the aforementioned reasons apply. However, if they have rejected his request but then at the same time, or soon after, given permission to someone in the same position as him to change their hours, it could imply that he is deliberately being treated unfairly. In these circumstances the only way to pursue this is to actually resign and claim constructive dismissal. Not the best scenario s you can imagine as it would mean he is out of a job and the claim can be difficult to win but it is his last option should he not be in a position to continue working there as a result
Ben Jones :
Does this clarify things a bit more for you?
Customer: Thank you Ben, you have been a great help and i feel more clear now as to how to proceed. Ican not afford to resign, but I will be able to speak to my people manager and have a clearer view on what I can say and what options are open to me
Customer: Ps. Could I start a grievance against the manager concerned?
Ben Jones :
I would not suggest you make the grievance directly against the manager but just make it general about the refusal and the company's policies - the manager will automatically be part of it as he makes the decisions but try not to make it personal like this
Ben Jones :
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you