The ability to work flexibly is no longer just a response to a global pandemic; it is a fundamental employment right in the modern UK economy. For many, “flexibility” has moved beyond simple home-working to include compressed hours, job-sharing, and staggered start times.
However, as the law becomes more pro-employee, the procedural requirements for employers have become stricter. Understanding the “Day One” right to request and the new consultation mandates is essential for avoiding employment tribunal claims.
Who is Entitled to Request Flexible Working?
One of the biggest changes in recent years is the removal of the “waiting period.” Previously, an employee needed to be in their role for 26 weeks before making a formal application.
- A “Day One” Statutory Right: Every employee now has the right to make a flexible working request from the very first day of their employment.
- Increased Frequency: Employees are now entitled to make two formal requests in any 12-month period. This allows for adjustments if personal circumstances—such as childcare or health needs—change throughout the year.
The Formal Request Process
To be valid, a request must be made in writing. While the employee no longer has a legal duty to explain how the change will affect the business, a well-drafted request often leads to a smoother approval process.
According to the Acas Code of Practice, a request must include:
- The Date: To mark the start of the two-month decision period.
- The Specific Change: Whether it is a change to hours, days, or location (e.g., hybrid working).
- The Requested Start Date: When you would like the new pattern to begin.
- Previous Applications: Confirmation of any other requests made in the last 12 months.
The Employer’s Legal Obligations
The law now mandates a more “collaborative” approach. An employer can no longer simply send a rejection letter without a discussion.
The Duty to Consult
Before an employer can refuse a request, they must consult with the employee. This usually involves a meeting to explore the request in detail. Even though there is no longer a statutory right to be accompanied, allowing a colleague or trade union representative to attend is considered best practice and helps prove that the employer is acting in a “reasonable manner.”
The Two-Month Decision Window
Employers must notify the employee of the final decision—including the outcome of any appeal—within two months of receiving the request. This is a reduction from the previous three-month window, reflecting the need for quicker resolutions in the modern workplace.
The 8 Statutory Reasons for Refusal
An employer can only decline a request if they can prove a genuine business reason. Using generic excuses is often insufficient to defend against a claim of unfair dismissal or discrimination. The eight permitted grounds are:
- Additional Costs: The financial burden of implementing the change.
- Customer Demand: A detrimental effect on the ability to meet client needs.
- Work Distribution: An inability to reorganise work among existing staff.
- Recruitment Issues: An inability to recruit additional staff to cover gaps.
- Quality Impact: A negative effect on the quality of work or service.
- Performance Impact: A detrimental effect on the overall performance of the business.
- Insufficient Work: Not enough work available during the periods the employee proposes.
- Structural Changes: Planned reorganisations or restructures within the business.
Frequently Asked Questions
Can my employer take back an approved flexible working request?
No. Once a flexible working request is formally accepted, it usually constitutes a permanent change to your employment contract. Any future changes would require a new formal agreement or a trial period.
What happens if my request is refused?
If your employer refuses your request, they must explain which of the eight business reasons applies and why it is “reasonable” in your specific circumstances. If you believe the decision was based on incorrect facts or a lack of consultation, you may have grounds for a grievance or a tribunal claim.
Does flexible working apply to “Bank” or “Zero-Hours” workers?
The statutory right to request flexible working applies to employees. While many workers (including those on zero-hours contracts) may have a contractual right to request changes, the strict statutory process specifically protects those with employee status.
Could a refusal lead to a discrimination claim?
Yes. If a refusal disproportionately affects a specific group (for example, women who traditionally handle more childcare), it could be considered indirect sex discrimination. Similarly, if a request is made as a “reasonable adjustment” for a disability, a refusal could lead to a disability discrimination claim.
Is there an appeal process?
While the law does not strictly require an appeal process, the Acas Code of Practice strongly recommends it. Most reputable firms, including those we advise on settlement agreements, include an appeal stage to ensure the process is handled fairly and transparently.
Next Steps
Managing flexible working requires a delicate balance between business needs and employee well-being. If you are an employer needing to update your handbook or an employee facing an unfair refusal, our team is here to help.
Call Gorvins Solicitors today on 0161 930 5151 or contact our employment law specialists via our online form.