Turning down applications for flexible working can automatically constitute a grievance

Employers should treat any staff requests for flexible working as potential grievance letters that may trigger employment tribunal claims, lawyers have warned.

A recent series of tribunal rulings has established that employees do not have to explicitly notify their manager of a grievance before taking the employer to court if a request for flexible working is turned down.

This runs contrary to disciplinary procedure guidelines issued  the government, which had indicated that a formal grievance letter would be needed before proceeding.

Law firm Trowers & Hamlin said that employers should now look at most formal staff requests as potentially triggering the claims procedures, because failure to do so could lead to a compensation award being increased by 50% in a successful tribunal claim.

Richie Alder, partner at Trowers & Hamlin, said: “Employees can only pursue claims if they have raised grievances in writing first, so if the definition of what constitutes a formal grievance letter is relaxed, the potential for claims is increased.

“It is important for employers to know what now constitutes a grievance so that they know when to initiate the correct grievance procedure. Recent rulings have really muddied the waters, which puts employers at greater risk of being penalised by tribunals for not instigating the grievance procedure when they should.”

Employers should probably now treat any written request for something which they have a legal obligation to consider but which they have previously rejected, as a grievance, Alder said.

Trowers advises that if an employee raises a matter in writing, the employer should clarify whether it is a grievance or not and begin the statutory grievance procedure.

Trowers & Hamlins: flexible working requests


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