If your employee disagrees with your decision, they have a right of appeal. If they wish to exercise that right, they must make their appeal in writing within 14 days of receiving your written notice refusing their request.
In the appeal notice, they must set out the grounds for making the appeal. There are no restrictions on the grounds for appeal.
You must arrange an appeal meeting within 14 days of receiving your employee's appeal notice. Where practicable, the appeal should be heard by a different manager.
The principles on the right to be accompanied, pay for attending the meeting and what happens if your employee fails to attend are the same as for the initial meeting.
You must inform your employee of the outcome of their appeal in writing within 14 days after the date of the meeting.
If you change your mind and choose to accept their request, this notification must:
There may be occasions where an employee feels that you have not dealt with their application to their satisfaction.
You should first try to sort out any problems with an application informally. For example, if a manager misses a deadline to respond to an employee's request, you should tell them to deal with the application as quickly as possible to discourage the employee from taking more formal action.
If an employee feels that the issue has not been resolved using informal methods, they may use your grievance procedure if they wish.
If you cannot resolve the issue internally, you could try using an external third-party mediator or conciliator, e.g. ACAS or a union representative.
Where all other methods have failed, the employee may feel that an employment tribunal claim is necessary.
An employee may make a complaint to an employment tribunal where either:
The employment tribunal does not have power to question your business reasons, although it can examine the facts on which the business reason was based to see if they are factually correct. However, if a case is brought jointly with other legislation, e.g. discrimination legislation, an employment tribunal may seek to examine how the request was considered. A tribunal will want to see evidence:
Before reaching a tribunal, Advisory Conciliation and Arbitration Service (ACAS) may offer to resolve the dispute through its. Participation in the scheme is entirely voluntary but if both parties agree to arbitration, the decision of the arbitrator is binding and the employee loses their right to go to an employment tribunal.
The basis for making a complaint to the scheme, and potential remedies available, are the same as they are at an employment tribunal.
An employment tribunal or ACAS arbitration can order you to:
There is a separate award of up to two weeks' pay where you failed to allow the employee to be accompanied at a meeting.
You must not treat an employee detrimentally or dismiss them for a reason relating to their flexible working request. In addition, you should note that rejecting a flexible working request could give rise to a discrimination claim.
Your employee may make a complaint to an employment tribunal if they suffer a detriment or are dismissed because:
Dismissal means the termination of your employee's employment, with or without notice, including redundancy selection and the non-renewal of a fixed-term contract. It could also include constructive dismissal, i.e. where your employee resigns believing you have substantially breached their contract of employment.
Employees who suffer a detriment or are dismissed in these circumstances may make a complaint to an employment tribunal.
In some circumstances, rejecting an employee's flexible working request could open up the possibility of a claim for discrimination on grounds of sex, race, religion or belief (England, Wales and Scotland) or religious belief or political opinion (Northern Ireland), sexual orientation, disability or age.
For example, if you reject the request of a woman returning from maternity leave to work part-time, this could be seen as indirect sex discrimination. This is on the grounds that a greater proportion of women than men have the main parental caring responsibility - you requiring her to work full time puts her at a disadvantage compared to her male colleagues.
However, even if she is put at a disadvantage by your refusal, you can still justify your actions at a tribunal if you can show that they were a proportionate means of achieving a legitimate aim. This applies to indirect discrimination only.
You must not treat part-time workers less favourably in their contractual terms and conditions than comparable full-timers - unless you can objectively justify that treatment.
So, if you agree to a request to work fewer hours, bear in mind that the employee is still entitled to the same pay and benefits (on a pro-rata basis) and access to training and promotion opportunities.