Flexible working refused for childcare

Hello there. I am Gemma, a legal assistant here at Lawyer Destroyer. I would be happy to help you with this.

The short answer:

Yes, you potentially can. While having a child is not automatically protected on its own, refusing a flexible working request related to childcare very often leads to a claim for indirect sex discrimination.

The legal position:

Under employment law in England and Wales, you have the right to request flexible working from your very first day on the job. This is a recent change that came into effect in April 2024. Your employer must handle your request reasonably, they must consult with you before saying no, and they must give you a decision within two months.

They can only refuse a formal request if they rely on one of eight specific business reasons. These reasons include things like a burden of additional costs, an inability to reorganise work among existing staff, or a detrimental effect on the ability to meet customer demand.

How this connects to discrimination:

If your employer refuses your request, you may have grounds for a claim of indirect sex discrimination under the Equality Act 2010.

Indirect discrimination happens when an employer applies a workplace rule to everyone, but that rule puts a certain group at a particular disadvantage. Because women still typically take on the majority of childcare responsibilities in our society, the employment tribunals generally accept that requiring strict, inflexible hours places women at a disadvantage.

If you are a woman and your request is refused because of an inflexible workplace rule, your employer would need to prove that their refusal is objectively justified. This means they must show it is a proportionate way of achieving a legal and legitimate business aim. Simply preferring everyone to be in the office, for example, is rarely enough to justify a refusal.

If you are a man, bringing an indirect sex discrimination claim regarding childcare is legally more complicated, but it is becoming slightly more common as societal roles shift.

Things that might change the picture:

To give you the most accurate view, it would be helpful to know a few more details. For instance, what specific business reason did your employer give for saying no? What exact working pattern did you ask for, and what was your previous working pattern? It would also be useful to know the exact dates they refused your request, and whether your request was made as a formal statutory request or just an informal chat.

Practical next steps:

1. Ask for an informal meeting
If you have just had a flat no, ask for an informal chat with your manager to discuss why. Sometimes employers just need help seeing how your proposed working pattern will actually function without harming the business. You could even suggest a trial period.

2. Appeal the decision
If you made a formal statutory request and it was refused, check your company handbook for their flexible working policy. You usually have the right to appeal. Submit this in writing, specifically addressing the business reasons they gave for turning you down.

3. Raise a formal grievance
If the appeal does not work, and you feel the refusal was discriminatory or unfair, you can raise a written grievance using your employer's internal grievance procedure. This forces management or HR to formally investigate the situation.

4. Contact ACAS for Early Conciliation
If the internal routes fail to fix the problem, your next step is to contact ACAS. They are the independent employment body and offer a free mediation service called Early Conciliation. You must go through this step before you can take an employer to a tribunal.

5. Consider an employment tribunal claim
If mediation does not resolve the issue, you could bring a claim to an employment tribunal for indirect sex discrimination, a failure to handle a flexible working request properly, or both. Please bear in mind that tribunal claims take a long time, can be stressful, and carry legal risks. You also face strict deadlines. You generally only have three months minus one day from the date the discriminatory act happened to start the ACAS process.