The right to request flexible working arrangements for childcare is one of a number of family-friendly rights introduced by recent legislation as part of the government’s work / life balance campaign.

This is the right to request, not a right to flexible working. The legislation sets out a procedure for the employer to follow, if a request is made. This includes a meeting to discuss the request and the right of appeal. The employer is required to give a reason for refusing a request for flexible working and the legislation gives a list of acceptable reasons. These reasons are the burden of additional costs, detrimental effect on the employer’s ability to meet customer demand, inability to reorganise the work amongst existing staff, inability to recruit additional staff, detrimental effect on quality or performance, insufficient work during the periods the employee proposes to work and planned structural changes.

If a request is refused and the employee makes a complaint to an employment tribunal, the tribunal cannot question the reasonableness of the employer’s decision. It can be asked to consider whether the statutory procedure was correctly followed by the employer, whether an acceptable reason was given for refusing the request or whether the facts relied on by the employer in coming to the decision were correct.

An Employment Appeals Tribunal case, Commotion Ltd v Rutty 2006 confirms that a tribunal can look closely into the factual basis for the employer’s refusal.

The claimant, who worked full time asked to work shorter hours and a 3-day week. She was refused and her appeal to an Employment Tribunal failed.

The employer’s reason for turning down the request was that it wanted to foster a team spirit amongst staff and this meant they had to work the same hours in a uniform working day. They also said that shortening her working hours would have a negative impact on performance and put a strain on resources.

However the Employment Appeal Tribunal found for the Claimant. The employer had made no effort to check that the facts they were working on were correct. Even though a tribunal is not able to look into whether the employer’s decision was fair or not, it can look at the grounds for rejecting the request to see whether it is factually correct. This decision reminds employers that they should have a factual basis for their decision, not assumptions and they could be called upon to produce evidence of their reasoning.

See QGP’s document ST4 Family Friendly Rights (Amended August 2006) now available on the QGP website.