Flexible working: the law and best practice

There may be occasions where an employee feels that their employer has not dealt with their flexible working application to their satisfaction.

Informal resolution

You should first try to sort out any problems with a flexible working application informally to discourage the employee from taking more formal action.

If an employee feels that the issue has not been resolved using informal methods, they may use your grievance procedure. Read more on handling grievances.

Third-party conciliation/mediation

If you cannot resolve the issue internally, you could try using an external third-party mediator or conciliator, eg Labour Relations Agency (LRA) or a union representative.

The LRA may offer to resolve the dispute through its Arbitration Scheme.

The LRA Arbitration Scheme

The LRA Arbitration Scheme provides an alternative to having a case heard by a tribunal to resolve an employment-related dispute (for example, claims relating to flexible working arrangements, unfair dismissal, breach of contract, or discrimination).

The scheme is quicker, confidential, non-legalistic, less formal and more cost-effective than a tribunal hearing.

Under the scheme, an arbitrator's decision is binding as a matter of law and has the same effect as a tribunal.

Find out more about the LRA Arbitration Scheme.

Early Conciliation

Anyone who wishes to lodge a claim with the Industrial or Fair Employment Tribunal must first notify the LRA and discuss the option of Early Conciliation. A claimant will not be able to proceed to tribunal without at least considering this option.

Tribunal claims

Where all other methods have failed, the employee may feel that an industrial tribunal claim is necessary.

An employee may make a complaint to an industrial tribunal where either:

• your decision to reject a flexible working application was based on incorrect facts, although this issue should first be covered in the appeal meeting - see flexible working refusal: employee's appeal
• you didn't follow the procedure properly, eg you failed to hold the meeting to discuss the application within the timescale (where no extension had been agreed) or where you failed to provide a complete and proper explanation to the employee of your decision to refuse their request

An employee cannot make a complaint where they simply disagree with the business grounds you give.

The industrial tribunal does not have the power to question your business reasons, although it can examine the facts on which the business reason was based to see if they are factually correct. If a case is brought jointly with other legislation, eg the Sex Discrimination (Northern Ireland) Order 1976 or other discrimination legislation, an industrial tribunal may seek to examine how the request was considered.

Note that applications to tribunals have time limits. The LRA can provide information about tribunal time limits - contact the LRA.

Remedies and compensation

An industrial tribunal or LRA arbitration can order you to:

• pay an award to the employee
• reconsider an application by following the procedure correctly

The maximum level of compensation is eight weeks' pay - although there is a statutory cap on the amount of a week's pay.

There is a separate award of up to two weeks' pay where you failed to allow the employee to be accompanied at a meeting.

There may be an additional award of compensation if the employee is successful in a joint claim, eg taken under Sex Discrimination legislation - as set out above.