Flexible working and the right to request

What is flexible working?

‘Flexible working’ means making a change to the hours your work, the times you work or your place of work. It is altering the way you work in a more flexible way and there are a wide variety of patterns of work; flexible working is not only working from home. Examples of kinds of flexible working that you can request include:

• reducing your hours to work part-time
• changing your start and finish times
• having flexibility with your start and finish time (sometimes known as ‘flexitime’)
• doing your hours over fewer days (‘compressed hours’)
• working from home or elsewhere (‘remote working’)
• sharing the job with someone else (‘job share’)

Before you make the request, you should consider speaking to your employer informally first and have a look at our advice on how to negotiate your request.

This article applies to England, Wales and Scotland. Rules on how requests for flexible working are dealt with are different in Northern Ireland.

Confusion arises when talking about flexible working rights; this may be because there are three different pieces of law setting out the rules. The framework of rules which cover the flexible working process are set out in sections 80F to 80I of the Employment Rights Act 1996 and the Flexible Working Regulations 2014 (as amended by the Employment Relations (Flexible Working) Act 2023 and the Flexible Working (Amendment) Regulations 2023).

The Employment Rights Act 1996 also provides protection from employees suffering a detriment or being dismissed because the employee has made or proposed to make a statutory flexible working request.

The Equality Act 2010 provides the strongest protection for many parents and carers who need to change their hours to work more flexibly. It protects workers and employees from discrimination and is a day one right.

You might find the flex request masterclass film below useful.

Changes from April 2024

Working Families is delighted to have proposed a set of flexible working reforms to Yasmin Qureshi MP and worked alongside her to develop the Employment Relations (Flexible Working) Act which came into force on 6th April this year.

From 6th April 2024, any employee has the statutory right to make a flexible working request from day 1 of employment.

If you make a statutory working request from this time (see Making the Request below):

• you will be entitled to make two statutory flexible working requests per year (prior to 6 April only one statutory flexible working request could be made per year);

• the decision period for your employer shortened to two-months (from three months) (which can be extended by agreement) within which time your employer must consider your request, consult with you (if the employer is unable to accept the request), notify you of the outcome of your request and complete an appeal (if your employer allows appeals);

• You will no longer be required to explain how the arrangement will work (although it may help put forward your case if you do)

• Your employer is required to consult with you if your employer intends to reject your request. The aim is that this will open up a meaningful dialogue between employees and employers which should lead to better outcomes. 

The employer should also follow the revised ACAS code on Flexible Working.

Who can make a flexible working request?

Anyone can make an informal request to work flexibly, but certain employees have extra protection in law. From 6th April 2024, any employee has the right to make a statutory flexible working request from the first day of their employment (although this does not cover the recruitment period) and an employee can make two requests under the statutory regime in any 12-month period. You don’t have to be a parent or carer, a flexible working request can be made for any reason. 

You can only have one live request for flexible working at any one time so you will need to withdraw your request or wait for the final outcome of any existing request before submitting a new flexible working request.

Making the request

There is no specific form to complete, but in order to qualify as a statutory request, it must:

• Be in writing.
• Be dated.
• Explain the change they would like to their working pattern.
• Explain when they would like the change to come into force.
• State that it is a statutory flexible working request.
• State if the employee has made a request previously and if so when.

We also have useful advice on how to present and negotiate your request.

When preparing your request, whether an informal request or a formal statutory request, we recommend you take the following into account and include as much detail as possible:

• explain your reasons for requesting the change: In particular, if the change is being requested to help with any caring/childcare responsibilities or is being requested to help you manage a disability or illness then you should clearly state this. If you set this out explicitly your employer might realise that it could be potentially discriminatory to refuse your request. You may want to set out what the impact would be on you if you can’t work flexibly, particularly if it would mean that you may not be able to continue working due to childcare difficulties as you employer is obliged (under the Equality Act) to consider what the impact of refusing the request would have on you and weight this up against any adverse business impact on them in agreeing to the request;

• where possible, think about the impact the proposed change will have on your employer’s business: From 6th April 2024, it is no longer a requirement to explain what the effect your requested change may have on your employer and how any such effects might be dealt with; however, showing (where possible) that you’ve put yourself in your employers shoes and, importantly, demonstrating how any impact of your flexible working proposal can be addressed will make it harder for your employer to reject your request. Be creative but practical with your ideas to help your employer understand how any impacts can be managed. A starting point may be to look at the list (below) of permitted business reasons an employer could use as a basis to refuse a request. This should help you to identify areas that your employer may concerned about and think about how those concerns could be resolved;

• set out the benefits to your employer: You could explain you will be more engaged and productive if you are given this flexibility, how you enjoy your role and that this would be a huge support to you as a parent and carer. Many employers report productivity gains, a boost to morale, employee engagement and retention as well as increasing diversity and inclusion when flexibility is offered. This really could be win-win for both employer and employee. If you had been working from home due to changes brought in as a result of COVID, you may be able to provide some concrete evidence for this;

• consider whether you can be flexible with the changes you are requesting: If your first preference isn’t workable for your employer then there may be alternatives that you’d be willing to agree to. If so, consider including these alternatives in your initial request to show your employer that you are willing to be flexible but set them out in order of preference and the reason why your first choice would work best. For example, one option could be to work reduced hours, and an alternative could be to work condensed hours, and another could be to spread the hours over more days. You should set this in order of your preferred options and the reasons why e.g. if you only have childcare on specific days, make this clear;

• consider telling your employer that you are open to a trial period: Trial periods are a great way of showing your employer that your flexible working arrangements are workable in the long term (see below for more information);

• give as much information as you can in your request so that your employer can give it proper consideration; and

• get the request in early as your employer can take two months to respond. If you are on maternity leave, and you want to return to work on a different working pattern, it’s a good idea to make sure you get your request in well before 2 months before you want to return. You can also ask if your employer would respond sooner and set out any dates which are critical e.g. if nursery closing or changing pattern/availability.

Important: Where appropriate, it is a good idea to inform your employer that the Equality Act 2010 is relevant to your request as additional protections and rights are likely to apply in this case. This may apply if you are asking for flexible working for childcare purposes of to care for a disabled person or if the request is needed because of a disability. You should also consider including detail about the impact on family life if it is turned down.

Informal Flexible Working Request

If you don’t qualify to make a statutory request (if, for example, you are not an employee or you have already made two applications in a 12 month period) but you need flexibility you can still make an informal request. This is outside of the Flexible Working legal framework and would not have the protections that relate to the regulations but would still be covered by the Equality Act 2010. We would recommend that all requests are made in writing and the above recommendations about what to cover be included.

What happens after you make a statutory flexible working request

Once you make a statutory request for flexible working, under the regulations employers have the following (fairly limited) obligations:

• your employer has two months to give you a final decision for requests made from 6th April 2024 (including the outcome of any appeal) although this can be extended by agreement;
• to deal with your request in a reasonable manner;
• to only refuse a request on one or more permitted reasons.
• from 6th April 2024, employers must not reject a request without first consulting you. This means that unless an employer decides to agree to the flexible working request in full, they must consult with you before they make a decision. ACAS guidance states that this should be done by inviting the employee to a meeting to discuss the request.

In addition to the legal requirements listed above which employers must follow, the ACAS guide sets out additional things that employers ‘should do‘ when considering a statutory flexible working request. The word ‘should‘ is used in the guidance for things that are recommended as good practice but not legally required and while there is nothing unlawful in the employer failing to do these things, an employment tribunal would take into account whether the employer had followed these steps. If your employer seems uncertain about the process to follow or you have concerns that they are not dealing with your request in a reasonable manner, you can refer your employer to the Acas code and guidance.

For instance, the current ACAS guidance suggests an employer should:

• carefully assess the effect of the requested change for both the employer and employee, such as potential benefits or other impacts of accepting or rejecting it;
• arrange a consultation meeting without unreasonable delay if the employer does not agree to the flexible working request in full;
• if the employer agrees to the request, a written decision should confirm the details of the arrangement and should offer you an opportunity to clarify any further information that might be helpful;
• if the original request cannot be accepted in full, the employer should discuss whether a modified version of the request or alternative options that might work instead;
• if the employer rejects your request after consulting with you, the written decision should clearly explain the business reason(s) and should also set out any additional information which is reasonable to help explain the decision. The decision should also make it clear if you have the right to appeal the decision;
• deal with appeals as quickly as possible, where they are allowed.

The only ways employers can breach the statutory flexible working procedure is by not giving a permitted reason, taking longer than two months to give you a decision (including any appeal), by basing their decision on incorrect facts, by not consulting with you before rejecting a request, by incorrectly treating a request as having been withdrawn and by not dealing with a request in a reasonable manner.

The Employment Tribunal (ET) has a fairly limited ability to scrutinise an employers decision to refuse a request under the Flexible Working Regulations and unless you can persuade the ET that the employers decision was based on incorrect facts, it is hard to go behind the employer’s business decision and the ET does not have the power to question the employer’s commercial judgment.

Meetings

Unfortunately, whilst your employer must consult with you if they are not going to agree to your request in full and the ACAS guidance states that there should be a consultation meting, there is still no legal requirement for your employer to invite you to a meeting to discuss your request.

If your employer does invite you to a consultation, here are some negotiating tips. There is no suggestion that the meeting should be face-to-face, a meeting over telephone would be acceptable but it must be held privately and your employer should notify you of the time and place in advance of the meeting .

The ACAS guidance does not require your employer to allow you to be accompanied to any meeting, however the guidance does state that if you make a reasonable request to be accompanied at any meeting to discuss your flexible working request your employer should allow you to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union.

If you cannot attend a meeting, your employer should rearrange it. If you fail to attend two meetings then the employer can take your request to be withdrawn, although they should find out and consider your reasons for not attending first.

This guidance applies to initial meetings and (where allowed) appeal meetings.

Trial periods

It is important to note that if your flexible working request is accepted, it will form a permanent change to your contract unless you or your employer specifies that the arrangement should be temporary.

The Regulations do not refer to trial periods although the current ACAS guidance states that a trial period may be appropriate to see how the flexible working change will work in practice. It is common for employers to allow a trial period of 3 or 6 months of a flexible working arrangement. It may be useful to ask for a trial period if your employer is reluctant to accept the request, to convince your employer that the arrangement will work. If your employer refuses to allow a trial period, you could argue that your employer has not dealt with your request in a reasonable manner.

If your employer gives you a trial period, you can agree with your employer to extend the time for them to make a final decision on your flexible working beyond two months of your original request. You will also want to agree review points to deal with any concerns and agree that if no concerns are raised that the request will be approved and be a permanent change.

What happens if my employer agrees to my request

If your employer accepts your request, the new flexible working pattern will be a permanent variation to your contract of employment, unless you agree otherwise. Your employer should provide you with a statement in writing confirming changes to your employment terms and conditions usually contained in your employment contract or statement of particulars of employment, within one month of the changes taking effect. This is required by section 4, Employment Rights Act 1996.

Your employer may do this by either issuing a new contract setting out the new agreed terms or set out in writing the terms and expressly amending the contract with effect from a stated date.

A reduction in hours will usually result in reduced pay, benefits and paid leave. You should make sure that any new terms are agreed before the change takes effect. If you are moving from full-time to part-time you should not lose out on the pro rata equivalent of terms that full time employees enjoy.

If you do have benefits withdrawn this could amount to a form of discrimination because you are a part time worker. If you are doing the same work – you should have a pro rata benefit (or a proportion equivalent to the full time role) e.g. 3 days of a normal 5 day full time week would result in 0.6 x pay and 0.6 x holiday.

If you are moving to reduced hours and pay, your workload should also reduce. There should not be the expectation that you will have the same output if you are on lesser hours. It is important to raise the issue of job design in your meeting as to how the role will be performed. You should not experience less favourable treatment because you have moved to part time hours. See our page on part time workers for more information.

This is reflected in the current Acas Guidance which recommends your employer should confirm the details of the agreed change in writing.

You may be asked to sign to confirm the agreement to the new terms or written variation to acknowledge acceptance.

If the new working arrangements do not meet your needs, or if your needs change due to a change in your childcare arrangements, you can make a further statutory request within the 12 months period from the date of your original request. You could also make an informal request and seek to renegotiate your work pattern to better fit with your caring responsibilities.

What to do if your employer refuses your request

If your employer refuses your request, see our articles on What to do if your flexible working request is refused, and Flexible Working and discrimination for what action you can take.

Under the flexible working legal framework, your employer can only refuse your request for a ‘permitted business reason’. These are:

• Burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods you propose to work.
• Planned structural changes.

Even if your employer refuses your request for a permitted reason, you may still be able to challenge their refusal if the Equality Act 2010 applies.

The permitted reasons are quite broad, and unfortunately it is generally fairly easy for an employer to rely on one or more of these reasons when rejecting an application. In considering whether not the reason for refusal correctly falls within one of more of the permitted reasons, the Tribunal’s role under the Flexible Working Regulations is limited to checking that your employer has followed the correct procedure and based their decision on correct facts. They do not have the power to really scrutinise your employer’s decision.

However, employers must also comply with the Equality Act 2010 (if it applies) when dealing with flexible working requests. This means for example, that if you are making the request due to childcare or caring responsibilities or a disability, your employer must ensure that in refusing your request, they are not discriminating against you on the basis of your sex or disability. This applies to all flexible working requests, irrespective of whether you are making a statutory or non-statutory request.

Claims relating to flexible working requests will often have a discriminatory element – discrimination claims require the Employment Tribunal to actually look behind and scrutinise the employers decision to refuse. In addition, the potential awards that a tribunal can make for discrimination are much higher than for breaches of the Flexible working Regulations.

Employers are often aware of their requirements to comply with the Flexible Working Regulations (which aren’t too onerous) but often are unaware that they must also comply with the Equality Act 2010 which requires much more careful consideration of your request.

Your employer may also argue they can refuse your request under the regulations if you are not eligible to make a statutory flexible working request (e.g. if you are not an employee or you have already made two requests in the last 12 months). However, you may be able to challenge this refusal under the Equality Act if you have made a request because of your caring responsibilities or because of a disability. See our pages on what to do if your employer refuses your flexible working request and Flexible working and discrimination for more detail.

You may wish to share our Flexible Working Factsheet with your employer to help them understand the law on flexible working requests.

Frequently asked questions

Here are some of the most common questions about flexible working that we receive on our helpline.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

Our helpline and online contact form is now closed as we wind down our operations. Our free legal advice pages remain available and up to date until further notice. You can find a list of trusted organisations that may be able to help you below.