Flexible working refusals: limited direct claims, significant indirect risks
The right to request flexible working is a day-one right for all employees in the UK. Crucially, however, it is only a right to request flexible working, not a right to have the request granted.
On the face of it, the legal consequences of refusing a request are relatively modest. Direct claims under the flexible working regime are narrow and compensation is limited. In practice, though, a poorly handled refusal can expose employers to far more costly claims, particularly under discrimination law.
The statutory process
The Employment Rights Act 1996 sets out the procedure employers must follow when dealing with flexible working requests. Employers must:
- handle the request in a reasonable manner;
- consult with the employee before refusing it; and
- provide a decision within two months, unless a longer period is agreed in writing.
A request may only be refused for one or more of eight statutory business reasons, including additional costs, inability to reorganise work, detrimental impact on quality or performance, or planned structural changes.
Challenging a refusal: Direct claims under the Employment Rights Act 1996
Employees disappointed by a refusal have limited scope to directly challenge the decision under the flexible working regime itself.
An employee may bring a tribunal claim where the employer:
- failed to deal with the request reasonably;
- missed the statutory deadline;
- relied on a reason not permitted by statute;
- based the decision on incorrect facts; or
- wrongly treated the application as withdrawn.
These claims focus on procedural errors rather than whether the employer made the ‘right’ decision.
Tribunals will not usually second-guess a refusal if the employer has genuinely considered the request and relied on evidence rather than an unsupported opinion (see Morsing v Howden Joinery Group and Wilson v Financial Conduct Authority).
Compensation is modest: a maximum of eight weeks’ pay, with a week’s pay currently capped at £751.
The real risk: discrimination and constructive dismissal claims
Because direct compensation is limited, employees often pursue discrimination claims instead.
Indirect sex discrimination
Tribunals recognise that women continue to bear a greater share of childcare responsibilities. A requirement to work full time or attend the office regularly may therefore place women at a particular disadvantage.
If an employer refuses to relax that requirement, it may face an indirect sex discrimination claim unless it can objectively justify the policy.
In Thompson v Scancrown Ltd t/a Manors, a female estate agent was awarded more than £180,000 after her request to work four days a week following maternity leave was refused.
Section 19A of the Equality Act 2010 also allows individuals who do not share the protected characteristic, but suffer the same disadvantage, to bring a claim. This means that a father with primary childcare responsibilities may potentially rely on indirect sex discrimination if a request for flexibility is refused – he will have suffered the ‘same disadvantage’ as women.
Disability discrimination
Where an employee is disabled, a flexible working request must be considered alongside the employer’s duty to make reasonable adjustments.
Refusing changes to working patterns or office attendance may amount to disability discrimination if the adjustment would have removed a substantial disadvantage.
Compensation for discrimination is uncapped and may include injury to feelings.
Constructive dismissal
A mishandled refusal may also breach the implied duty of trust and confidence. If the employee resigns in response, they may claim constructive unfair dismissal.
Compensation for unfair dismissal is significantly higher than the eight-week cap under the flexible working regime. In addition, the government has made clear its plans to remove the compensatory cap for dismissals taking effect from January 2027.
Macdonald v Computershare Technology Services
The recent Scottish case of Macdonald v Computershare Technology Services illustrates the range of claims that can follow a refusal.
The Claimant requested permanent homeworking to help his wife care for their neurodivergent twin sons. The employer refused, citing a detrimental impact on quality.
Rather than pursuing a flexible working claim, he brought several discrimination claims, including indirect sex discrimination and associative disability discrimination.
All claims were dismissed. The tribunal found that he had not suffered the same disadvantage as women (as he was not the primary caregiver) and that there was no link between the refusal and his children’s disabilities.
Although the claim was ultimately unsuccessful, it demonstrates how a straightforward flexible working refusal can lead to complex and expensive litigation.
Looking ahead
The Employment Rights Act 2025 will strengthen employee protections by requiring employers to show that any refusal is itself “reasonable”. However, when this change comes in (likely in 2027), a direct challenge on the basis that a refusal was not reasonable would still sit within the same enforcement regime as other flexible working challenges, with compensation limited to eight week’s pay.
Key takeaway for HR
A rejected flexible working request may currently carry limited financial risk under the Employment Rights Act 1996 alone.
The greater danger lies in the possibility of discrimination or constructive dismissal claims, where compensation can be substantial.
Compliance with the statutory process is only the starting point. Employers should also consider whether a refusal could disproportionately affect employees with childcare responsibilities or disability-related considerations.