Flexible Working Request Appeal Hearing

[janner66]

Hi,

I have just concluded my flexible working request appeal hearing but have not had the result yet, but I just wanted to check on a couple of things that the appeal officer said and did please.

First of all, he said that if my appeal is upheld all that it will do is reset the number of requests I can make in a year i.e. two. So, it will return to two from one.
He said it does not mean that my request will be accepted and actioned but it will mean I can apply again and still have two requests in a year to use.

The other thing was that he refused to use any other law or policy other than our local work policy. When I quoted ACAS guidelines on The Equality Act and The Employment Rights Act he said that he wasn't an employment lawyer and could only consider our local policy.

I argued that to reject a flexible working request you must give a genuine business reason for the rejection and there are eight reasons you can use and they did not state any of these in my original request.
This is actually mentioned in our local policy but the appeals officer has said that the wording is ambiguous because it says "You can use one of the following reasons to reject a request" and he argues "can" means you can or you cannot, so you don't have to use one of those reasons but you can.

I'm not sure where this leaves me because if he does uphold the appeal it just means I will have to apply again and I can see the same thing happening all over again.

Can I just take them to a tribunal rather than go through all this again? I am autistic which is the reason I want to work from home more often but all this stress and meetings is making me poorly.

[ULA]

Firstly your post has not made it clear what the basis of your appeal was. I assume, from what you have posted, that you made a flexible working request to change your contract in terms of your location of work ,from the office to working from home, which was refused and you appealed this decision.

My view is that if an appeal against a flexible working decision is upheld due to that appeal, it means the employer has reversed the original decision and has in fact approved the request. Essentially, the appeal was successful, and your flexible working arrangement will be granted. I am really unsure as to why the appeal officer does not think this would be the case and believes that all an upheld appeal entitles you to, is it to disregard that the request has been made and resets you to be allowed to make 2 requests in a 12 month period.

An employer can refuse an application for flexible working, but they must have a genuine, good business reason for doing so. The employer needs to show that one or more of the 8 grounds you mention apply for them to lawfully refuse a flexible working request:

You cannot complain to a tribunal just because your flexible working request was refused. The only reasons for being able to make a tribunal claim are if your employer:

* Did not handle the request in a ‘"reasonable manner". Examples of handling requests in a reasonable manner include:
- assessing the advantages and disadvantages of the application
- discussing possible alternatives to the request
- offering an appeal process - which does not appear to apply in this case
* Wrongly treated the employee’s application as withdrawn - which does not appear to apply in this case
* Dismissed or treated you poorly because of the flexible working request, for example refused a promotion or pay rise - which does not appear to apply in this case.
* Refused your application based on incorrect facts - which does not appear to apply in this case.

[janner66]

Thanks ULA for your reply.

I am not asking to change my contract. I am just asking to work from home more often and go into the office for meaningful training and meetings. It's about giving me more control of when I go in. We already work from home for 65% of our job because when we work nights and weekends the office is shut so I am just asking to do that more. It will not involve a change in my contract. It is for a reasonable adjustment due to my autism because I am struggling in an office environment when I go in for the remaining 35%.

The appeals officer has rejected my appeal because he says the request was handled reasonably and all adjustments were put in place that the business could. He argued that the local flexible working policy is ambiguous in the wording of giving a genuine business reason so has discounted that part of the policy.

My main gripe and what my appeal was based on was that my line manager did not follow ACAS guidelines on many elements of my request and neither the original request or the appeal were able to state one of the eight business reasons to reject my request under.

It sounds from your reply that they don't have to give one of the eight business reasons, but just justify that a reasonable reason was given. I was under the impression that an employer MUST give one of the eight business reasons to reject your request and if they can't they must accept your request.

ACAS states:
By law, as an employer, you can only reject a request if it's for one or more of the following business reasons:

• it will cost your business too much
• you cannot reorganise the work among other staff
• you cannot recruit more staff
• there will be a negative effect on quality of work
• there will be a negative effect on the business's ability to meet customer demand
• there will be a negative effect on performance
• there's not enough work for your employee to do when they've requested to work
• there are planned changes to the business, for example, you intend to reorganise or change the business and think the request will not fit with these plans

If there's no business reason to reject the request, you must agree to it.

I have contacted ACAS and they are in the mediation stage and are in the process of contacting my employer to see if this can be resolved before a tribunal.

I am worried now that they don't have to give one of the eight business reasons above. I really need to know whether this is the case or not before I decide whether to go to tribunal or not.

Thanks.

[ULA]

Asking to work from home more often may be a variation to your contract it depends what is set out as your place of work and what proportion of time is designated as home working.

I am not sure why you have interpreted from my response in post #2 "It sounds from your reply that they don't have to give one of the eight business reasons, but just justify that a reasonable reason was given"

I have said "An employer can refuse an application for flexible working, but they must have a genuine, good business reason for doing so. The employer needs to show that one or more of the 8 grounds you mention apply for them to lawfully refuse a flexible working request". This clearly advises that for an employer to refuse an application for flexible working, they have to provide a genuine reason for doing so which relates to one or more of the 8 reasons you have set out. If they can do this then they can refuse the application for flexible working. If they cannot give a clear business reason in respect of those 8 reasons, then you can challenge this which you have done via your appeal and it it for you to now decide if you want to pursue this further.

[janner66]

Sorry, I think I just misread your reply.
My head is not very clear at the moment because this has been weighing on my mind.
Thank you for the reply. I have further meetings but will try and pursue this through the court if those are not satisfactory.

[ULA]

Please do not worry I can imagine this is stressful for you.

I would urge you to try and resolve this without the need to go to an Employment Tribunal as the current timings for final hearing are in excess of a year.