Where an employer considers a request to work flexibly within the required timescale and refuses it for a permissible reason, are there any tribunal claims that the employee could bring?
Employers have a duty to deal with statutory applications to work flexibly in a reasonable manner. An employee could bring a tribunal claim on the ground that the employer has failed to comply with this duty, for example if it has failed to follow its own procedure when dealing with the application. An employee may also be able to bring a claim for discrimination or constructive unfair dismissal arising from the refusal of his or her request for flexible working.
Employers should be wary of the risk that the rejection of a flexible working application could amount to indirect sex discrimination. This occurs where an unjustified provision, criterion or practice has a disproportionate adverse impact on persons of a particular sex. For example, rejecting flexible working requests and requiring employees to work full time can have a disproportionate adverse impact on women, who tend to have the majority of childcare responsibilities, as well as responsibility for the care of other relatives. In such a situation, an employer rejecting a flexible working request would need to demonstrate that it was appropriate and necessary for business reasons that employees worked on a full-time basis.
Indirect sex discrimination of this nature may also amount to a fundamental breach of the employment contract entitling the employee to resign and bring a claim for constructive unfair dismissal.
Direct sex discrimination could also occur, for example if an employer rejects a request from a male employee who wants to work flexibly for childcare reasons, where similar requests from female employees have been granted.
A refusal to allow a disabled employee to adopt a flexible working pattern could amount to a failure by the employer to make reasonable adjustments.