The Current Law (Employment Relations (Flexible Working) Act 2023)
The right to request flexible working changed significantly from 6 April 2024. The key changes from the previous regime:
| Before April 2024 | From April 2024 |
|---|---|
| Must have 26 weeks' service | Day-one right |
| 1 request per 12 months | 2 requests per 12 months |
| Employee must explain business impact | No requirement to explain business impact |
| 3-month decision period | 2-month decision period |
| No obligation to consult | Employer must consult before refusing |
What is a Flexible Working Request?
A flexible working request is a statutory application to change one or more of:
- Working hours: Reducing to part-time, compressed hours, annualised hours
- Working times: Changed start/finish times, staggered hours, flexitime
- Working location: Home working, hybrid working, different office
- Working pattern: Job sharing, term-time working, shift changes
The request must be in writing, state the date, specify the change requested, the proposed start date, and state that it is a statutory request under Section 80F of the Employment Rights Act 1996.
The 8 Business Reasons for Refusal
An employer can only refuse a flexible working request for one or more of these reasons (set out in Section 80G of the ERA 1996):
- 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 the employee proposes to work
- Planned structural changes
Employer's Process
Step 1: Acknowledge Receipt
Acknowledge the request in writing. While not legally required, it is good practice and starts the 2-month clock.
Step 2: Consult with the Employee
From April 2024, the employer must consult with the employee before refusing a request. This means having a meaningful discussion about:
- The reasons for the request
- Alternative arrangements if the specific request is not possible
- A trial period option
- Partial acceptance
Step 3: Make a Decision
The employer must reach a decision within 2 months of receiving the request, unless a longer period is agreed in writing with the employee.
Step 4: Communicate the Outcome
If approved: Confirm the new arrangement in writing, including the start date, review period (if any), and any changes to the employment contract.
If refused: The refusal must be in writing, state which of the 8 business reasons apply, and explain why that reason applies.
Handling the Consultation Meeting
- Listen actively to the employee's reasons
- Explore alternatives if the exact request is problematic
- Consider a trial period (e.g. 3 months) to test the arrangement
- Be specific about any business concerns
- Document the discussion and any alternatives considered
- Do not pre-judge -- approach with an open mind
Common Pitfalls
- Missing the 2-month deadline: If no decision is reached within 2 months, the employee can complain to an employment tribunal
- Not consulting before refusing: The new law requires consultation. Refusing without discussion is a procedural failure
- Blanket policies: "We don't allow working from home" is not a valid approach. Each request must be considered individually
- Treating as permanent: Flexible working changes are permanent contract variations. Make sure both parties understand this before agreeing
- Ignoring protected characteristics: Refusing requests from women returning from maternity leave or disabled employees without proper consideration may amount to indirect discrimination
Flexible Working and Discrimination
Flexible working requests frequently intersect with equality law:
- Indirect sex discrimination: Women are more likely to request flexible working for childcare. Blanket refusals may disproportionately affect women.
- Disability: Flexible working may be a reasonable adjustment under the Equality Act 2010. Refusing could be disability discrimination.
- Age: Older workers and carers may request flexibility. Consider the Equality Act implications.
How Grove HR Helps
Grove HR provides a structured flexible working request workflow with statutory deadlines, consultation meeting templates, decision documentation, contract amendment generation, and a dashboard to track all active requests and their status.
Frequently Asked Questions
Can a new employee request flexible working on their first day?
Yes. From April 2024, the right to request flexible working is a day-one right. There is no qualifying service period. The employee can submit a statutory request from their very first day of employment.
Can an employer reverse an agreed flexible working arrangement?
An agreed flexible working arrangement is a permanent change to the employment contract. The employer cannot unilaterally reverse it. Any change would need the employee's agreement or would follow the same process as any other contract variation. This is why trial periods are recommended.
What if two employees request conflicting flexible working arrangements?
Each request must be considered on its own merits. The employer should try to accommodate both where possible, or consult with both employees to find a compromise. Refusing one request solely because another employee already has a flexible arrangement is unlikely to be a valid business reason.