• A flexible working request is a request by an employee to change their hours of work (for example, full time to part time, term time only, or varying shifts to fixed shifts), days of work or place of work (for example hybrid or home working) or any combination of those.
• All employees with at least 26 weeks continuous service have the statutory (legal) right to request flexible work.
• Employers will find it useful to put a Flexible Working Policy in place.
• When an employee makes a statutory request for flexible working, an employer is under a legal duty to consider the request reasonably and can only refuse a request for one of 8 permitted business reasons. It is worth noting the employer must come to a final decision (including the outcome of any appeal, if offered) within 3 months of the date of the request.
• There are circumstances where a refusal to allow an employee to change their working pattern may amount to sex discrimination (see below). It is important that an employer considers a request carefully, fairly and reasonably.
Who Can Apply
All employees with at least 26 weeks service can request a change in their working pattern. This can include changes to their hours of work, days of work or place of work. For example, they may ask to work part time, start work an hour later, or work from home.
Periods of maternity and parental leave (paternity, adoption and other forms of parental leave) and sick leave count towards the 26 week employment conditions. So do periods on probation.
Employees with less than 26 weeks service do not have a legal right to request flexible work but an employer can allow applications for flexible work from all employees regardless of length of service.
An employee can only make one statutory request for flexible work every 12 months.
The employee initiates the statutory procedure by making a formal, written request to the employer.
A flexible work request should state each of the following:
• That it is a statutory application for flexible working under s80F ERA 1996.
• Whether the employee has made any previous requests and if so, when.
• The changes they are applying for and the date on which they propose the changes should come into effect.
• What effect, if any, the changes will have on the Company and how they believe these might be dealt with.
The employer may agree to the employee’s request to vary their working patterns without following the complete procedure. If so, the employer should write to the employee within a reasonable time frame to confirm the employee’s request. The letter should set out the agreed changes to the employee’s working patterns and the date these are to commence. It should also make clear that these changes are a permanent change to the employee’s terms and conditions of employment.
If the employer isn’t able to agree the request without further consideration, it would be good practice to invite the employee to a meeting to discuss their request (though there is no legal requirement to do so). The employer should also consider, if offering a meeting, to allow the employee to have a colleague or union representative with them.
The employer should notify the employee in writing of its decision within a reasonable timeframe.
There is no legal right for the employee to appeal the employer’s decision if he or she does not agree with it. However it is good practice for an employer to offer an appeal.
If the employer offers a right of appeal, the employee should outline in writing the reasons why he or she thinks the decision is wrong within a reasonable time of the employer’s decision. Asking for an appeal to be made in writing within 7-10 days would seem reasonable.
Again there is no right to an appeal meeting but it would be good practice to have one, again allowing the employee to have a colleague or union representative with them.
The employer must notify the employee of its final decision within 3 months of the date of the flexible working application. This 3 month time limit should be borne in mind when considering the flexible working request and scheduling any meetings and appeal.
The employer and employee can agree a longer time frame if both parties agree.
If the employer agrees to vary the employee’s working patterns, it should set out in writing what the agreed change is and when it is to start and that it is a permanent change. If the employer does not agree to any change, it should provide the employee with its reasons in writing.
Any changes put in place will be permanent unless the employer and employee agree otherwise. For example, the changes could be put in place for a three-month trial period and then reviewed.
Reasonable consideration of a request
In order to consider a request reasonably, it is a good idea to:
• Hold a meeting to discuss the employee’s request
• Consider if it could work for the business and the genuine issues it might cause. Think about how these could be dealt with.
• Remember: offering flexible working is likely to improve recruitment and retention rates which will save the business money in the long term. It is also a way of keeping long standing employees or those with family or caring commitments. A work life balance is something many employees look for regardless of caring or family status.
It is a good idea, where an employer does not agree to the employee’s initial request, for the employer to discuss alternative options with the employee.
Reasons for refusing a request
An employer must consider the employee’s request reasonably and can only refuse the request for one or more of the following prescribed business reasons:
• the burden of additional costs;
• detrimental effect on the 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;
• insufficient work during periods the employee wishes to work;
• planned structural changes.
It is important when considering the business reasons for refusal not to just cite one or two reasons without an explanation as to why they apply.
Each request must be considered individually. Refusing a request on the basis that “it wouldn’t be fair on everyone else” or “everyone has to work full time” may be discriminatory.
Getting it wrong / Tribunal claims
An employee can bring a claim in an employment tribunal claim if the employer:
• fails to deal with their application in a reasonable manner;
• fails to notify them of the decision on their application within the decision period;
• fails to rely on one of the statutory grounds when refusing their application;
• bases its decision on incorrect facts; or
• treats the application as withdrawn when the grounds entitling the employer to do so do not apply.
In addition to the above, there may be circumstances where a refusal to allow an employee to change their working patterns amounts to either direct or indirect sex discrimination. For example, an insistence on full time working, or refusing to offer fixed shifts may give rise to a claim of indirect sex discrimination.
Indirect sex discrimination occurs where an employer applies a policy to all its employees but it has a greater negative impact on one group of employees (e.g. women) with a protected characteristic (e.g. sex), and the employer isn’t able to justify the policy. The courts accept the premise that women generally shoulder childcare responsibilities. A policy or practice that requires full time work or varying working patterns or little or no flexibility may indirectly discriminate against women who have childcare responsibilities. An employment tribunal will scrutinize the employer’s reasons for refusing flexible work so it is important to consider requests carefully. If a request is refused an employer will need evidence to demonstrate the refusal was both legitimate and proportionate.
A man may also be able to bring a claim of direct sex discrimination if he can show that a woman would have been granted flexible working when his application was refused.
This toolkit contains a model Flexible Working Policy
Proposed changes to the law on flexible working
Legislation is making its way through government to amend the law around statutory flexible working requests. It is anticipated changes will include :
• The right to request will become a day one right for employees, rather than limited to those with at least 26 weeks’ service
• Employees will be able to make up to two requests a year (up from a single annual request)
• The maximum response time will be cut from three to two months
• Employers will have to consult with the employee before refusing any request
• The requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer will be removed
Your policy will need to be updated if and when these changes come into effect.
You may want to consider these changes and draft your policy accordingly.
Relevant legislation and statutory guidance
• Employment Rights Act 1996 (ERA 1996) sections 80F to 80I (as amended)
• Flexible Working Regulations 2014 (SI2014/1398)
The statutory scheme is supported by the following ACAS documents:
• ACAS code of practice on flexible working requests (ACAS Code)
• ACAS flexible working (ACAS Guidance)
• ACAS guide to flexible working and work-life balance (ACAS Booklet)
You must ensure with all legislation that you refer to the most recent version and be aware these rules are likely to change in the near future if the expected legislative changes come into force.
Gov.uk Request flexible working – application form template