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Unresolved flexible working disputes: a guide to tribunals

There will be times when an employee remains unsatisfied by an employers decision to reject a request for flexible working and decides to take further action.

No matter how diligently procedures are followed, there’s always a chance that this could happen and you should ensure you’re prepared to cope with it.

Avoiding a tribunal

Tribunals tend to be costly for all involved and should be a last resort. As a result, it makes sense for both parties to resolve the situation before it goes this far.

If standard procedures have failed to find a resolution, you can try speaking informally to reach some sort of compromise. If this isn’t possible, make sure you have a formal grievance procedure so that the employee feels they have a proper avenue for complaints rather than rushing into taking legal action.

Alternatively, both parties can agree to try to resolve the issue through the use of an external third party mediator or conciliator. This might be someone from Acas (Advisory, conciliation and arbitration service), a union representative, or another person with appropriate expertise, perhaps known through the local Business Link organisation.

The purpose is to try to resolve the case in an informal fashion instead of immediately resorting to the more formal route of external arbitration or making a complaint to an employment tribunal.

The third party will tend to contact the employer and employee and attempt to resolve the problem through discussion. They will talk through the issues surrounding the issue, outline the law relating to the case where necessary and generally help parties become aware of the options open to them.

Tribunals and Arbitration

If a dispute cannot be resolved between the parties in specific circumstances the case can be heard by an external body who provide the remedy to the disagreement: either an employment tribunal or through the Acas Arbitration Scheme.

When is there a case to go to an employment tribunal?

An employee may make a complaint to an employment tribunal or Acas arbitration where:

  • the employer has failed to follow the procedure properly; or
  • the decision by the employer to reject an application was based on incorrect facts.

An employee has no right to make a complaint where they simply disagree with the business grounds provided by the employer for declining a request, and neither has the employment tribunal/Acas binding arbitration powers to question the employer’s business reasons.

A breach of the procedure may, for example, be a failure to hold the meeting to discuss the application within the timescale (where no extension has been agreed) or where the employer fails to provide all the necessary information in their notice to the employee of their decision.

Missing a deadline as laid out in the procedure by one day will technically constitute a breach, although in the vast majority of cases where this is simply an accident the problem should be resolved at the workplace.

Equally, it is important that the employer ensures that facts provided to explain why a business ground applies are correct. While a tribunal or arbitrator has no power to question the employer’s actual business grounds for declining a request, any rejection based on incorrect facts will provide a basis for making a complaint.

Where an employee suspects that a fact is incorrect they must first raise this at appeal. For example, an employee may appeal by arguing against the employer’s grounds that there is no-one else to provide cover in their absence, which if not addressed by the employer at appeal could be a basis for making a complaint to a tribunal or arbitrator.

Apart from breaches of procedure relating to the failure to meet deadlines in respect of the meeting to discuss the application or the appeal hearing; or notice of the decision on the application or on appeal, the employee cannot make a complaint to an employment tribunal unless they have received notification that their application has been rejected on appeal.

What can happen at a tribunal or Acas arbitration?

An employment tribunal or Acas binding arbitration, which finds in favour of the employee, can order the employer to:

  • reconsider an application by following the procedure correctly; and/or
  • pay an award to the employee.

The level of compensation will be an amount that Acas or the employment tribunal feels to be just and equitable in all the circumstances, limited to a maximum amount.

The maximum level is currently eight weeks’ pay. The week’s pay itself will be limited to the maximum provided under Section 227 of the Employment Rights Act 1996. This is reviewed annually and at February 1st 2004 was £270.

In addition, where an employer is found to have prevented the employee from being accompanied either at the meeting to discuss the application or appeal meeting they may make a separate award of up to two weeks’ pay.

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