What should an employer do if an employee raises a complaint about the way in which their statutory flexible working request has been handled?
If an employee has a complaint about the way in which their flexible working request has been handled, the employer should try to resolve it in the course of dealing with the request. For example, if the employee complains that the employer is taking too long to respond to their request, the employer should inform the employee of the reason for any delay and ensure that it provides a response as soon as possible.
There is no statutory duty on employers to allow employees to appeal a flexible working decision, but employers must be able to show that they have handled the request in a reasonable manner. The Acas code of practice for handling in a reasonable manner requests to work flexibly, which will be taken into account in relevant employment tribunal cases, states that employers should allow an employee to appeal a decision to reject a request.
Whether or not an employer includes an appeal stage in its procedure for handling requests, if the employee is unhappy with the decision once the procedure has been concluded, the employer should advise them to raise a formal grievance using its grievance procedure. If possible, the grievance procedure should be conducted by someone unconnected with the flexible working request process.
If a grievance or appeal is upheld, the employer should ensure that the issue uncovered is rectified and the flexible working request reconsidered. For example, if the grievance or appeal procedure highlighted that the employer had used incorrect facts to make the original decision, the application should be re-examined using the correct information.
An employee can complain to an employment tribunal on the grounds that their employer:
- reached a decision in relation to a flexible working request based on incorrect facts;
- failed to deal with the request in a reasonable manner, within the required timescale;
- treated the request as having been withdrawn when it was not entitled to do so; or
- refused the request other than on one of the specified grounds.
The employer should attempt to avoid a tribunal claim by dealing thoroughly with the employee's complaint and rectifying any errors that are identified.