Estimated reading time: 7 minutes

From 6th April 2024, all employees have the right to request flexible working from Day 1 in their role, removing the previous 26 week wait. The Flexible Working (Amendment) Regulations 2023 represent a major shift in the approach to flexible working in the UK, reflecting demand and changing attitudes towards work life balance.  

Alongside this are a number of changes to the procedure for requesting flexible working, which were also brought into force on 6th April, by the Employment Relations (Flexible Working) Act 2023 (Commencement) Regulations 2024.

Failure to adhere to this new procedure can lead to employment tribunal (ET) claims, with compensation of up to eight weeks’ pay (capped at £643 per week)  and orders by the ET to rerun the process, alongside potential for Acas Arbitration Scheme referral.

This article explains the key changes to the procedure, how to prepare for and respond to requests, and strategies for minimising the risks associated with refusing request and potential discrimination claims.  

Accompanying these legislative changes,  Acas published a revised  Statutory Code of Practice on requests for flexible working  which also came into force on 6th April.  The revised Code of Practice covers all the changes and provides guidance for employers and employees on the statutory right to request flexible working as set out by the Employment Rights Act and the regulations made under it. 
It’s important to read it.

If an employee makes a statutory flexible working request, as an employer you must:

  • handle it in a reasonable way, in line with the Acas Statutory Code of Practice on requests for flexible working
  • accept the request unless there’s a genuine business reason not to
  • consult with the employee, and if not agreeing to the request in full, discuss any alternative options
  • make a decision within a maximum of 2 months
  • not dismiss or cause your employee detriment because of the request


What is flexible working?

Following the pandemic, flexible working has become far more common and takes many forms.
It’s a broad term that covers :

when employees work, their working hours or patterns such as part-time, term-time only, flexi-time (allowing for flexible start and finish times beyond specified’ core hours’ or giving time off in lieu of extra working hours), compressed hours (e.g working a 5 day week in 4 days) and annualised hours . It also covers:

where employees work, such as home working and hybrid working, as well as

how jobs are performed, such as job-sharing.

Right to request flexible working from Day 1, the main changes

  • Requirements: Employees must submit their request in writing, detailing the desired change, the proposed start date, and any previous requests. This has simplified the application process and means employees no longer need to justify how their request impacts the business, shifting the onus on to employers to think about the effects.
    You need to make clear to your employees (in your flexible working policy) that this information must be included in any statutory request for flexible working.
  • An employee can now make 2 statutory requests for flexible working within any 12 month period, rather than previously one.

Employer’s Response

Flow chart: the procedure on statutory requests for flexible working

  • Timely Handling: Employers have two months (reduced from three) to respond to a request, with the option to extend by mutual agreement with the employee.
  • Consultation: A significant change is the new requirement for employers to allow reasonable consultation and consideration of the request before rejecting it, aiming to curb blanket refusals and to foster dialogue about possible compromises. The Acas Code of Practice suggests discussions should include the potential benefits and impacts and any practical considerations.

Meetings and Decisions

  • Meeting Requirement: Unless the request is immediately accepted in full, the employer should arrange a meeting promptly with the employee to discuss the request and explore alternatives. The employer should keep an written record of the meeting reflecting an accurate record of the discussion.
  • Decision Making: Employers must agree to the request unless there is a genuine business reason not to. There are 8 statutory grounds on which an employer can reasonably refuse a request for flexible working. Employers must convey their decision in writing.

    Consider holding a trial period of the suggested flexible working arrangements to provide evidence of how the arrangements do or do not work in practice.


Navigating the risks of refusing a request, and discrimination

  • Discrimination: be vigilant against discriminatory refusals which could lead to uncapped compensation claims, especially relating to requests linked to disabilities or indirect sex discrimination. It is important to have a proper discussion and open consultation as it may be that an employee is seeking a reasonable adjustment for their disability through a request for flexible working and a refusal or insensitive response may lead to claim for unlawful discrimination. For example a mother requesting flexible working for childcare reasons could be a protected characteristic and so to refuse could be discrimination.
  • A refusal letter must specify the clear business reason for refusing the request, and not the person’s situation. i.e If you refuse an employees request to return to work part time following maternity leave, saying “the employee will be too remote from the business” or “the team has to be full time” the reason given is more about the person’s situation and does not specify a business reason within one of the 8 statutory grounds this then leaves your organisation vulnerable to a discrimination claim.
  • Employers will have to consider how they will prioritise requests. As there will be competing demands for flexible working relating to childcare, care for elderly parents, recovery from illness, disability and reasonable adjustments, pregnancy and maternity and so on.

Appeals

Appeal Rights: The new legislation doesn’t require employers to offer a right of appeal if a flexible working request is rejected, though offering a right of appeal is recommended in the current Acas Code of Practice on handling flexible working requests. If the case ends up in the Employment Tribunal and you haven’t followed the ACAS code you can be liable to a 25% uplift in the amount of any award.

It may be prudent when deciding whether to accept or reject a flexible working request to state that the decisional is provisional and subject to appeal by the employee. This gives you, as the employer a chance to remedy any defects in the process followed or to have a trial period and gain evidence of how the arrangements actually work in practice.


Implications for employers

Employers should start reviewing their flexible working policies for April 2024.
Aside from the Day One right to request flexible working, which alone has considerable implications for employers, the additional changes will put more of the onus on employers to find the flexible working solutions. It will mean dealing with successive requests, very careful decisions on ranking requests in order of preference, keeping records of the timing of the requests and the discussions as well as the decisions made, responding more quickly and engaging more effectively with requests. The biggest impact, and burden, will be on SME’s who don’t have large HR resources. A sector that accounts for far more of the UK workforce than is generally understood. 40% of private sector workers work in businesses with less than 50 staff.

The right to request flexible working from Day 1 is a major change to UK working practices. It’s obviously hugely popular with employees, working families and those with caring responsibilities, why would it be otherwise. But it will take some nips and tucks, and effective recruitment (for 1 and 2 day roles), from Employers, HRs and Line Managers, not least to ensure those who are working full time aren’t picking up the additional work. The direction of travel here is clear, and the next step is including the flexible working potential when advertising a vacancy. Going forward, Employers will need to start assessing each role and as a matter of course, ask the question, can it be done flexibly?

Remember only to turn down a request using one of the 8 statutory reasons and if refusing a request be mindful of the discrimination risks. Also make sure staff handbooks and HR policies dealing with flexible working requests are updated to reflect the new process. If you need advice and assistance, please do get in touch.

Contact us

For more information or queries about issues discussed in this article, please contact by email.

To speak directly with or any other of The Legal Partners team of specialist business and HR lawyers based at our Richmond UK office, or our partner lawyers in Singapore, please call +44 203 755 5288

This article explains the main legal issues and common situations to consider. It is not a substitute for legal advice. Please get in contact to discuss your particular issue or queries.

Contact us

For more information or queries about issues discussed in this article, please contact by email.

To speak directly with Ann or any other of The Legal Partners team of specialist business and HR lawyers based at our Richmond UK office, or our partner lawyers in Singapore, please call +44 203 755 5288

This article explains the main legal issues and common situations to consider. It is not a substitute for legal advice. Please get in contact to discuss your particular issue or queries.