The Employment Rights Act provides employees with the statutory right to request flexible working arrangements from Day 1 of their employment, with the option of making two formal requests in any 12 month period.
This article provides practical guidance for employers navigating flexible working requests under the current legal framework. It outlines your obligations when considering a request, the correct process to follow, and how to respond fairly and lawfully, including when it is appropriate to refuse a request and how to manage appeals. With flexible working now a legal right from day one of employment, understanding how to handle these requests is more important than ever to avoid legal risk and promote a productive, inclusive workplace.
The statutory flexible working request is defined as a request for a change to an employee’s terms and conditions relating to their hours, working time or place of work.
Flexible working is a broad term describing any working arrangement that meets the needs of both the employee and the employer regarding how, when, and where the employee works. That includes part-time working, homeworking, hybrid working, flexitime, job sharing, compressed hours, annualised hours, term-time working or team-based rostering.
These arrangements can also be agreed informally without using the statutory procedure.
However, when an employee makes a statutory request for flexible working, the Acas Code of Practice must be followed.
If you receive a flexible working request, the rule is that you must handle every request in a reasonable manner. That includes carefully assessing the effects, benefits and impacts of accepting or rejecting the request, for you and the employee.
Furthermore, you must do so within the statutory decision period as all requests must be decided and communicated to the employee within two months of receipt of the request unless otherwise agreed in writing with the employee.
In making your decision, you must also not discriminate unlawfully against the employee in relation to the protected characteristics set out in the Equality Act which are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.
It is also possible that a disabled employee may seek reasonable adjustments by requesting flexible working arrangements. If so, you must also bear in mind your legal obligations under the Equality Act when considering the request, notably that you must positively discriminate to remove any disadvantage related to a person’s disability, provided that it is practical, affordable and reasonable to do so. This obligation is separate from the obligation to consider a flexible working request.
The rule is that you must agree to a statutory request for flexible working unless there is a genuine business reason not to, in other words for one or more of the following genuine business reasons (as set out in the Employment Rights Act):
The wording of the Employment Rights Act suggests that the test for the employer is a subjective one so if you consider that one or more of the above grounds apply, then the test is satisfied.
The request may also be rejected if the employee is ineligible to make a request or has failed to comply with the statutory procedure:
(i) If the employee fails to meet the eligibility criteria, the employer should still consider whether the application merits serious consideration as the employee may be returning from maternity leave and the denial of flexible hours could amount to potential indirect sex discrimination.
(ii) If the employee fails to comply with the procedure on a technicality, it is not advised to reject the application outright. Instead the better approach is to inform the employee of the technical breach and advise them to resubmit an amended application which can then be properly considered.
Even if you have one or more of the cited business reasons to refuse a flexible working request, you must still follow the right procedure when refusing the request by seriously considering the request, consulting with the employee before refusing the request and notifying the employee of your decision.
Before meeting with the employee to discuss it, you must have given it serious consideration. You should identify the potential business issues and ways to mitigate them, which may require you to discuss the proposals with the employee’s manager and other colleagues.
Tribunal decisions indicate you should approach the request in a positive way, investigating how it could be accommodated rather than looking for reasons why it could not work.
You should also consider alternative ways to achieve the employee’s objectives if their proposed working patterns cannot be accommodated.
This should follow your consideration of the request and you must consult the employee before you make a decision. To do so, you should invite them to a meeting. This meeting should be held with someone in the business with sufficient authority to make a decision who has had the opportunity to understand all factors and information before a decision is made. It also gives the employee the chance to clarify other matters such as whether the request is in fact a request for a reasonable adjustment because of a disability.
The meeting should then be held either in person, remotely or via telephone, without unreasonable delay but with enough time to enable you and your employee to prepare for the meeting, but still taking account of the two-month time period an employer has to make a decision. A written record of the meeting should be kept.
During the meeting, you should discuss the potential benefits, considerations and impacts of accepting, implementing or rejecting the request. If you cannot accept the request in full, you should still discuss potential modifications, trial periods and alternative flexible working options. This will enable there to be a reasonable discussion and consideration of the request.
When you decide to reject the request, you must inform the employee of your decision in writing and without unreasonable delay.
You must clearly communicate your reasons for rejecting the request. This is so that it can be established that the request has been handled reasonably.
Acas guidance suggests the communication should include:
Even though there is no statutory right to appeal the decision, it is good practice to permit an employee this in the written decision.
If you receive an appeal, you should arrange the appeal meeting without unreasonable delay in the same way as the consultation meeting, and keep a written record as well.
As the appeal must be dealt with impartially, it should be handled by a different manager but one who still has sufficient authority to make the decision.
If you decide to reject the appeal, you must inform the employee of your decision in writing, clearly explaining what has been decided and why.
There is no statutory right to be accompanied, but it is good practice to allow this. You should therefore inform the employee that they may be accompanied by another worker or a trade union representative.
If the employee fails to attend both a meeting and a rearranged meeting without good reason, you may consider the request withdrawn. If so, you must inform the employee of this in writing.
Yes, you must follow the right procedure when refusing a request as the employee could otherwise complain to a Tribunal that you have:
If you receive flexible working requests from more than one employee at the same time, you should consider each request in the order you have received them, following the same procedure for each request, and not prioritising requests based on personal situations other than a protected characteristic such as a disability. If you are unable to accept the requests, you should talk to each employee about alternatives and try to find a compromise.
Yes, the Employment Rights Bill, currently moving through parliament, could potentially extend flexible working rights by requiring employers to justify their refusal and giving Tribunals the power to determine whether it was reasonable for an employer to reject a request. It will be interesting to see if these proposed changes are implemented. Watch this space!
Our specialist employment solicitors are available to guide you through this complex area and advise you swiftly and decisively when problems arise.
For further information please feel free to contact Rachel Lester, Head of Employment,
on +44 (0)7394 802375 and at Rachel.Lester@ilaw.co.uk.
