How to Challenge an Employer's Flexible Working Refusal

Employees in England and Wales have a statutory right to request flexible working arrangements, including changes to working hours, times, or location. Employers must deal with such requests in a “reasonable manner” and can only refuse them for specific business reasons set out in law.

When a flexible working request is refused, the decision is not necessarily final. Employees may challenge the refusal through internal processes, grievance procedures, and in some cases through an employment tribunal if legal obligations have been breached.

The legal framework is primarily governed by the Employment Rights Act 1996 (as amended) and the statutory flexible working regulations.

What Counts as Flexible Working

Flexible working refers to any change to an employee's normal working pattern, including:

• Reduced or adjusted working hours
• Compressed hours (e.g. full-time hours over fewer days)
• Part-time working
• Remote or hybrid working
• Flexible start and finish times
• Job sharing arrangements

The right applies from the first day of employment following recent legislative changes, subject to statutory procedures.

Employer Grounds for Refusing Flexible Working

An employer cannot refuse a request arbitrarily. Refusal must be based on one or more of the statutory business reasons:

• Burden of additional costs
• Inability to reorganise work among existing staff
• Detrimental impact on quality
• Detrimental impact on performance
• Inability to meet customer demand
• Insufficient work during requested periods
• Planned structural changes to the business

Employers must also act reasonably and follow a proper decision-making process.

Step 1: Reviewing the Refusal Decision

A refusal letter should explain:

• The business reason relied upon
• Why the request cannot be accommodated
• Any alternative options considered
• Confirmation of the right to appeal

A failure to provide clear reasons may indicate procedural non-compliance.

Step 2: Understanding the Right to Challenge

Challenging a refusal generally involves assessing whether:

• The employer followed the correct statutory procedure
• The decision was based on valid business reasons
• The employer acted reasonably and fairly
• The request was properly considered

Challenging does not guarantee approval but ensures compliance with legal standards.

Step 3: Submitting an Internal Appeal

Most employers have an internal appeal process for flexible working decisions.

Key steps:

• Submit the appeal in writing
• State why the refusal is incorrect or unfair
• Refer to alternative arrangements or compromises
• Highlight procedural errors or lack of consideration

Time limits:

Appeals are usually required within a short period, often 5–10 working days, depending on workplace policy.

Step 4: The Appeal Meeting

An appeal is typically heard by a manager not involved in the original decision.

During the meeting:

• The employee explains their request again
• The employer justifies the refusal
• Alternative arrangements may be discussed
• Further evidence may be considered

Employees may have the right to be accompanied by a colleague or trade union representative.

Step 5: Identifying Procedural Failures

A refusal may be challengeable if the employer has not complied with statutory requirements, including:

• Failure to consider the request properly
• Lack of consultation or discussion
• No valid business reason given
• Decision made without reasonable investigation
• Failure to respond within statutory time limits (usually 2 months unless extended by agreement)

Failure to follow procedure can strengthen a claim.

Step 6: Raising a Formal Grievance

If the appeal does not resolve the issue, a formal grievance may be submitted.

A grievance may be appropriate where:

• The refusal appears unreasonable
• The process was unfair or biased
• There is evidence of discrimination
• The employer failed to follow policy

A grievance ensures the issue is formally recorded and reconsidered.

Step 7: Acas Early Conciliation

Before bringing a tribunal claim, the employee must notify the Acas and go through early conciliation.

This process:

• Is mandatory before tribunal proceedings
• Allows settlement discussions
• Pauses limitation periods
• May result in a legally binding agreement (COT3)

Step 8: Employment Tribunal Claims

A flexible working refusal may be challenged at an employment tribunal if:

• The employer failed to deal with the request in a reasonable manner
• The decision was based on incorrect facts
• The employer failed to meet statutory obligations
• The refusal was discriminatory

Possible claims include:

• Breach of flexible working procedure
• Indirect discrimination (Equality Act 2010)
• Disability discrimination (if relevant)
• Constructive dismissal (in serious cases)

Step 9: Time Limits for Claims

Strict deadlines apply:

• Tribunal claims must usually be submitted within 3 months minus 1 day of the refusal or related act
• Time limits are paused during Acas early conciliation
• Extensions are only granted in limited circumstances

Employer Obligations in Flexible Working Requests

Employers must:

• Consider requests in a reasonable manner
• Consult with the employee before deciding
• Assess requests based on statutory business reasons
• Respond within a reasonable timeframe
• Provide written reasons for refusal

Failure to comply can lead to legal liability.

Common Issues in Flexible Working Refusals

Lack of meaningful consultation

Employers must engage with the employee before making a decision.

Generic refusal reasons

Vague or unsupported statements may not meet legal standards.

Failure to consider alternatives

Employers should explore modified arrangements before refusal.

Inconsistent treatment

Different treatment compared to similar requests may indicate unfairness.

Practical Considerations

• Put requests and appeals in writing
• Keep records of meetings and correspondence
• Propose alternative working arrangements
• Link request to business benefits where possible
• Identify whether refusal may involve discrimination issues

Common Questions from our Readers

Can my employer refuse flexible working without explanation?

No. They must provide one or more statutory business reasons.

Do I have a right to appeal?

Yes. Most employers provide an internal appeal process, and refusal decisions can be challenged.

Can flexible working be refused due to cost?

Yes, but only if it is reasonable and properly evidenced.

Can I bring a tribunal claim?

Yes, if statutory procedures are not followed or discrimination is involved.

Final Thoughts

Challenging a flexible working refusal involves reviewing the employer's reasoning, using internal appeal procedures, and ensuring statutory requirements have been followed. Employers must act reasonably and base refusals on specific legal grounds. Where processes are flawed or rights are breached, escalation through grievance procedures or employment tribunal claims may be available.