Right to request flexible working

May 02, 2024

All employees have the statutory right to request a change to the terms and conditions of their employment, where that change relates to the hours, times and/or location of their work. This is commonly referred to as a request for flexible working.

What is a request for flexible working?

A request for flexible working involves any change an employee seeks in their work arrangement, which could include adjustments to their working hours, workdays, or location. The law allows a change in location between the employee’s home and a place of business of the employers where the employee is required to work.

Examples: There are many different types of flexible working. Some requests may be minor: for example a delay in the start of working time to accommodate the school run, others may be more significant. Examples include a request to change from full-time to part-time, to change the days of the week worked, earlier or later start and finish times, flexi-time, staggered hours, compressed working hours, shift swapping, self-rostering, annualised hours, job sharing, term-time working, homeworking and hybrid-working.

According to Acas, “Some form of flexibility can be built into almost all jobs, regardless of the organisation’s size or sector.”

Eligibility for Making a Request for Flexible Working

The statutory right to request flexible working applies to employees from day one of employment.

(Those with a different employment status do not have a legal right to request flexible working. This includes workers and self employed individuals and also covers; agency workers*, members of the armed forces, office holders and those on employee-shareholder contracts.)
Each employee is entitled to make two flexible working requests to the same employer in any 12-month period.

• a decision on the request or appeal is made, or
• the request or appeal is withdrawn by the employee, or
• an outcome is mutually agreed, or
• the two month time frame for dealing with the request (including any appeal has expired).

A request is also live during any appeal or any agreed extension to the timeframe for dealing with the request.

Exceptions: *There is an unusual exception, in that an agency worker who is returning from a statutory period of parental leave, will be eligible to request flexible working in the same way as an employee.

Making a request for flexible working

When making a statutory request for flexible working, the following information must be included:

• a statement that it is a statutory request for flexible working
• the date of the request
• the change to working conditions (hours, times, days worked and/or location) the employee wishes to make
• the date the employee would like the change to come into effect
• if and when the employee has made a previous request for flexible working

(Note that with effect from April 2024, the Regulations no longer require employees to set out in their application the impact of their proposed new working arrangements and how it would be dealt with.)

You may wish to use a standard request form to help ensure the employee provides all of the necessary information.

The employee should consider their request very carefully because if it is accepted, it will mean a permanent change to their terms and conditions of employment, unless otherwise agreed.  Employees who have been granted more flexible arrangements do not have the right to insist on a return to full-time working (or a return to their previous hours or working pattern, whatever these were) once their circumstances change. Therefore any proposals for change should be fully considered, especially where these may result in a drop in salary.

The parties may agree to a temporary change (if they wish) and this would be particularly appropriate to cover a temporary change in circumstances, such as a bereavement or short-term childcare issues, or to undertake a short course of study, but many employers would be reluctant to guarantee that employees could revert back to their previous hours in several years’ time: however this may be a preferred option in some (limited) cases. Also, a trial period may be agreed, although it is not a statutory right.

Any requests for flexible working should be taken seriously, and the correct process followed – which should predominantly be determined by your policy and the Acas Code of Practice (and give consideration to any custom and practice and favourable adjustments depending on the unique  circumstances of the case).

Following receipt of a request for flexible working

On receipt of a request for flexible working, the employer must consider the request in a reasonable manner and within a two month period (unless a longer time period has been jointly agreed).

Given the overall timescale for handling requests (two months), it is good practice to acknowledge receipt of a request in writing and if any of the required information is not provided in the request, employers should inform the employee that the application is incomplete and explain what further information is needed.

Where the details of the request and information are clear, and from this, it is apparent that the request can be accommodated, the employer can agree to the request, and confirm this in writing, specifying the date on which the new contractual arrangements will apply and confirming what these arrangements are. Any changes are a permanent change to the terms and conditions unless otherwise agreed.

In all other instances, a formal  meeting will be required as soon as is possible in order to discuss the request.

Flexible working meeting

When a meeting is required, the employer must notify the employee of the time and place of the meeting, and it is recommended that this is communicated in writing.

During the meeting, the request will be carefully considered in accordance with the employers’ principles set out in their policy.  It may be helpful to discuss:

• the benefits or impact of accepting or rejecting the request for both the employee and the business
• where it is in connection with or arising from a disability, how the change will alleviate any disadvantage that may be suffered currently in the course of work because of their disability.
• practical considerations of implementing the request
• the impact on the employee’s entitlements, such as pay, holiday and benefits.
• whether a trial period may be appropriate to assess the feasibility of the arrangement.

In the meeting, the employer will need to carefully consider any potential modifications to the original request, alternative flexible working options that are available and the appropriateness of a trial period that could help to assess the feasibility of a new work arrangement.

It is advisable to keep a written record of the meeting to provide an accurate record of the discussion, in line with your data protection policy.

Employers who reject an application are required to consult with employees before refusing a flexible working request. There is no legal definition on what is meant by ‘consult’, however the ACAS Code of Conduct explains that the employee should be invited to a meeting, in which all the relevant information should be reviewed and understood before a decision is made, as has been discussed.

Right to be accompanied

There is no statutory right to be accompanied, but the Acas Code suggests that this should be encouraged. We would advise that the default position is to allow an employee to be accompanied at any meeting by a work colleague, a trade union representative or an official employed by a trade union, if they wish.

Grounds for refusing a request

There is no automatic right to work flexibly as there will always be circumstances where the employer is unable to accommodate the requested work pattern. Employers who reject an application should write and confirm this.

Employers must have one or more of the statutory business reasons for refusing the request. The reasons for refusal permitted by the legislation are as follows:

• detrimental effect on the ability to meet customer demand
• inability to reorganise work within available staffing
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• burden of additional cost to the business
• insufficient work during the period the employee proposes to work
• planned structural changes
• any other such grounds as the Secretary of State may specify by regulations.

In addition, sufficient explanation must be included as to why the chosen grounds apply in relation to the employee, together with details of any appeal procedure. We would not recommend that all of the reasons are selected – it is usually best to focus on the principal one or two, but it remains crucial to retain the evidence to justify the decision.

Employees cannot complain because they feel the employer’s decision is unfair or unreasonable, but may attempt to claim that the decision is based on discrimination arising from a protected characteristic. A tribunal examining a claim will investigate the evidence supporting an employer’s decision to reject a request, so it is advisable to create a paper trail showing your investigations prior to reaching a decision to reject a request and to ensure that you have sufficient evidence to justify your decision.

Employers still also need to bear in mind indirect discrimination, particularly sex discrimination. A female employee may claim indirect sex discrimination if she feels that her request has been unfairly refused and discriminates against women: the compensation for this is unlimited and can include an award for injury to feelings.

When considering refusing a request, it is also worth calculating the costs of replacement, retraining, loss of experience against any potential inconvenience as well as the employee relations consequences of any refusal.

Appeals

There is no statutory right of appeal; however the Acas Code recommends that the opportunity to appeal should be given. Furthermore, a tribunal is likely to find that the absence of an appeal would render the procedure unfair.

Extending the timescales

The above timescales may be extended by agreement (in writing) between the employer and employee. If the employee fails to attend two or more meetings without providing a reasonable explanation, the employer may treat the application as withdrawn (although it is good practice to write to the employee to confirm this).

Remedies

A complaint may be made to an employment tribunal in respect of the following:

• failure on the part of the employer to deal with the request in a ‘reasonable manner’ and within a ‘reasonable timescale’
• where the decision is based on incorrect facts
• the reason for refusal is not one of the permitted ones
• the application was incorrectly treated as being withdrawn.

The tribunal may award compensation of up to eight weeks’ pay (capped) or order that the application is reconsidered.

If the employee succeeds in a claim that the refusal of a flexible working request arises from unlawful discrimination, there is no limit on the compensation which may be awarded by a tribunal (which can include an award for injury to feelings). Employees whose requests are refused may also attempt to claim constructive dismissal (but would have to resign in order to do so).

 Further advice on agreeing to changes

When considering any of these varied arrangements, we would stress the need not only to consult fully with the individual involved, but also to consider any other employees who may be affected. If you are considering more flexible working arrangements, what implications will this have in terms of cover, or the undertaking of routine tasks which have to be done at certain times?

If the requests involve a reduction in hours, or changes in the number of days worked, do consider the following. The list below is not exhaustive and some of the items may not be appropriate but it is a useful starting point! If considering home working, see our separate guide.

• What are the new hours of work and how will these be measured (don’t forget your obligations to allow breaks and time off under the Working Time Regulations).
• If a small reduction in hours away from home is requested, can lunch/breaks be reduced to accommodate some of the reduced hours required (whilst still complying to the Working Time Regulations)? Or flexible start times/lunch hours/finish times so that everyone gets what they want?
• What effect will the change in hours have on other staff? If reducing hours, how is the extra work going to be distributed? If changing hours, will this have any effect in terms of cover for phones, reception, dealing with customer/client enquiries, other routine tasks etc which are timed to meet specific deadlines. Do consult with anyone else affected – if you can reach agreement on the best way forward this may prevent bad feeling or resentment from others. Avoid making value judgements between competing claims about whose needs are more important – concentrate on the needs of the business and your business reasons for allowing or rejecting a request. (You may wish however to bear in mind which of the competing requests is most likely to result in a discrimination claim.)
• Might a job-share be a solution?
• If the job involves travel, for example working at client/customer premises, can the changes be accommodated so that business needs are still met?
• If term-time only working is requested, it may be advisable to specify that holiday entitlement must be used during this ‘non-working’ period and that holidays (other than perhaps odd days) must not be taken during term time.
• If agreeing to homeworking, read our guide and ensure that clear expectations regarding contact times are agreed. Note that homeworking should not be a substitute for childcare.
• How will holiday and sick leave be affected/monitored? (ensure that clear rules are explained regarding bank/public holidays)
• How will any variable pay or bonuses be affected?
• Are pay and benefits pro-rated appropriately?
• Ensure that any agreement to change employment terms is confirmed in writing, and that if the change is made for a trial period, you diarise a review date and don’t overlook this! Be very clear about what is being expected of the employee in terms of future flexibility if things don’t go quite according to plan. Employees should be committed to making the trial work, so ensure that the employee knows of any reservations you have, and can work to overcome these. If it looks as though the trial may be unsuccessful, ensure that early feedback is given so that this does not come as a shock.
• You may wish to include a review clause in any future agreements relating to flexible working, with the right to revoke the arrangement (with reasonable notice) if necessary for business reasons.
• Look into all possibilities before turning down a request. Keep a record of this just in case you need to defend your decision.

Further information

The Gov.UK website offers guidance on flexible working, and the Acas Code of Practice should be complied with. The Government’s impact assessment shows the predicted take up and costs of the extension to becoming a day one right for all employees in April 2024; and the Consultation on Making Flexible Working the Default: Government Response discusses a range of matters including the impact of making flexible working requests a day one right, making the process more responsive and consulting with the employee about their request.