Can an employer safely ignore a request for a flexible pattern of working made by an employee who does not qualify for the statutory right to request flexible working?
All employees have the statutory right to make a request to work flexibly, provided that they have at least 26 weeks' continuous employment. If an employee requests a flexible pattern of work but does not have the required service, the employer can ignore the request without risk of it resulting in a successful claim under part 8A of the Employment Rights Act 1996 (which relates to the statutory right to request flexible working). However, the employee could bring a claim under discrimination legislation. The most likely recourse for a female employee is a claim for indirect sex discrimination on the grounds that women are more likely than men to have primary responsibility for childcare, so fewer women can comply with the requirement to work full time.
Employers should also keep in mind their duty to make reasonable adjustments under the Equality Act 2010 when considering a request for flexible working from an employee with a disability.
It is therefore advisable for employers to take all requests for flexible working seriously and give them due consideration.