The right to request flexible working is now fairly well established in English employment law. A common misconception amongst some employees has been that they are entitled to work work flexibly once they decide to make a request. 

The position is not quite so simple, an employer is only obliged to consider a request to work flexibly made by an employee and may decline it having done so. The catch is that the employer can only decline such request if it does so on the basis of one or more of eight permitted grounds. These broadly centre around the ability of the employer to deal with work which would otherwise have been undertaken by the employee during periods when the employee is absent.

Preventing certain groups of employees (such as the lower paid) from working flexibly or allowing other groups (such as the higher paid or those in more senior positions) more scope to work flexibly carries risks for employers. There is the potential for indirect sex or race discrimination claims if it can be shown for example that proportionately more lower paid employees are female or from ethnic minority backgrounds. Additionally and depending on how the request made by the employee has been dealt with by the employer, an employee whose request is declined may argue that the employer has breached the implied term of trust and confidence and that the employee should therefore be entitled to resign and claim constructive dismissal.

It is therefore for employers to operate a balanced approach when dealing with requests to work flexibly regardless of which employee makes the request.