Flexible working and the right to request
What is flexible working?
‘Flexible working’ means making a change to the hours your work, the times you work or your place of work. It is altering the way you work in a more flexible way and there are a wide variety of patterns of work; flexible working is not only working from home. Examples of kinds of flexible working that you can request include:
- reducing your hours to work part-time
- changing your start and finish times
- having flexibility with your start and finish time (sometimes known as ‘flexitime’)
- doing your hours over fewer days (‘compressed hours’)
- working from home or elsewhere (‘remote working’)
- sharing the job with someone else (‘job share’)
Before you make the request, you should consider speaking to your employer informally first and have a look at our advice on how to negotiate your request.
This article applies to England, Wales and Scotland. Rules on how requests for flexible working are dealt with are different in Northern Ireland.
Confusion arises when talking about flexible working rights; this may be because there are three different pieces of law setting out the rules. The framework of rules which cover the flexible working process are set out in sections 80F to 80I of the Employment Rights Act 1996 and the Flexible Working Regulations 2014. These rules currently apply to employees who have been working for the qualifying period of 26 weeks and specify that employees can only bring one statutory flexible working request per year.
The Employment Rights Act 1996 also provides protection from employees suffering a detriment or being dismissed because the employee has made or proposed to make a statutory flexible working request.
The Equality Act 2010 provides the strongest protection for many parents and carers who need to change their hours to work more flexibly. It protects workers and employees from discrimination and is a day one right.
Changes from April 2024
Working Families is delighted to have proposed a set of flexible working reforms to Yasmin Qureshi MP and worked alongside her to develop the Employment Relations (Flexible Working) Act which is coming into force in April this year and will remove barriers for millions of employees so they can access the flexible working arrangements they need to thrive.
From April 2024, any employee will have the statutory right to make a flexible working request from day 1 of employment.
If you make a statutory working request from this time (see Making the Request below):
- you will be entitled to make two statutory flexible working requests per year (currently only one statutory flexible working request can be made per year);
- the decision period for your employer will shorten to two-months (currently three months) (which can be extended by agreement) within which time your employer must consider your request, consult with you (if the employer is unable to accept the request) and notify you of the outcome of your request;
- your employer must deal with the application in a reasonable manner;
- You will no longer be required to explain how the arrangement will work (although it may help put forward your case if you do)
- A consultation is required if your employer rejects a request. The aim is that this will open up a meaningful dialogue between employees and employers which should lead to better outcomes.
The employer should also follow the revised ACAS code on Flexible Working.
Who can make a flexible working request?
Anyone can make an informal request to work flexibly, but certain employees have extra protection in law. Currently, any employee with 26 weeks of service with the same employer has the statutory right to make a flexible working request. An employee can only make one request under the statutory regime in any 12-month period. You don’t have to be a parent or carer.
Making the request
There is no specific form to complete, but in order to qualify as a statutory request, it must:
- Be in writing.
- Be dated.
- Explain the change they would like to their working pattern.
- Explain when they would like the change to come into force.
- Explain what effect the change would have on the business.
- Explain how such effects might be dealt with.
- State that it is a statutory flexible working request.
- State if the employee has made a request previously and if so when.
We have a Template Statutory Flexible Working Request Letter.
We also have useful advice on how to present and negotiate your request.
When preparing your request, whether an informal request or a formal statutory request, we recommend you take the following into account and include as much detail as possible:
• explain your reasons for requesting the change: In particular, if the change is being requested to help with any caring/childcare responsibilities or is being requested to help you manage a disability or illness then you should clearly state this. If you set this out explicitly your employer might realise that it could be potentially discriminatory to refuse your request. You may want to set out what the impact would be on you if you can’t work flexibly, particularly if it would mean that you may not be able to continue working due to childcare difficulties;
• think about the impact the proposed change will have on your employer’s business: Showing that you’ve put yourself in your employers shoes and, importantly, demonstrating how any impact of your flexible working proposal can be addressed will make it harder for your employer to reject your request. Be creative but practical with your ideas to help your employer understand how any impacts can be managed. A starting point may be to look at the list (below) of permitted business reasons an employer could use as a basis to refuse a request. This should help you to identify areas that your employer may concerned about and think about how those concerns could be resolved;
• set out the benefits to your employer: You could explain you will be more engaged and productive if you are given this flexibility, how you enjoy your role and that this would be a huge support to you as a parent and carer. Many employers report productivity gains, a boost to morale, employee engagement and retention as well as increasing diversity and inclusion when flexibility is offered. This really could be win-win for both employer and employee. If you have been working from home as a result of COVID, you may be able to provide some concrete evidence for this;
• consider whether you can be flexible with the changes you are requesting: If your first preference isn’t workable for your employer then there may be alternatives that you’d be willing to agree to. If so, consider including these alternatives in your initial request to show your employer that you are willing to be flexible but set them out in order of preference and the reason why your first choice would work best. For example, one option could be to work reduced hours, and an alternative could be to work condensed hours, and another could be to spread the hours over more days. You should set this in order of your preferred options and the reasons why e.g. if you only have childcare on specific days, make this clear;
• consider telling your employer that you are open to a trial period: Trial periods are a great way of showing your employer that your flexible working arrangements are workable in the long term (see below for more information);
• give as much information as you can in your request so that your employer can give it proper consideration; and
• get the request in early as your employer can take three months to respond. If you are on maternity leave, and you want to return to work on a different working pattern, it’s a good idea to make sure you get your request in well before 3 months before you want to return. You can also ask if your employer would respond sooner and set out any dates which are critical e.g. if nursery closing or changing pattern/availability.
Important: The ACAS guidance suggesting stating if you are making your request in relation to the Equality Act 2010. This may apply if you are asking for flexible working for childcare purposes of to care for a disabled person or if the request is needed because of a disability. You should also consider including detail about the impact on family life if it is turned down.
Informal Flexible Working Request
If you don’t qualify to make a statutory request but you need flexibility you can still make an informal request. This is outside of the Flexible Working legal framework and would not have the protections that relate to the regulations but would still be covered by the Equality Act 2010. We would recommend that all requests are made in writing and the above recommendations about what to cover be included. This may be where you need flexibility before you have 26 weeks continuous employment, or if your circumstances change and you need to make a further request within 12 months because, for example, your childcare falls through (as we saw regularly during COVID).
What happens after you make a statutory flexible working request
Once you make a statutory request for flexible working, under the regulations employers have the following (fairly limited) obligations:
- your employer has three months to give you a decision (this can be extended by agreement);
- to deal with your request in a reasonable manner;
- to only refuse a request on one or more permitted reasons.
The current ACAS guide sets out things that employers should do as good practice in considering a flexible working request. While there is nothing unlawful in the employer failing to do these things (the code uses the word “should” for things that are recommended but not legally required) an employment tribunal would take into account whether the employer had followed these steps. If your employer seems uncertain about the process to follow or you have concerns that they are not dealing with your request in a reasonable manner, you can refer your employer to the Acas code and guidance. This guidance will be replaced by the revised guidance from April 2024 when the new rules come into effect.
For instance, the current ACAS guidance suggests an employer should:
- Arrange to discuss the request with the employee as soon as possible
- Inform the employee if there is likely to be delay in processing the request
- Consider the request carefully, looking at the benefits (for you but potentially also for the business) and weighing these against any adverse business impact of implementing the changes you request
- Allow the employee to discuss a refusal where there is new information or if the employee thinks the request wasn’t handled reasonably
- Deal with appeals as quickly as possible where they are allowed
The only way an employer can breach the statutory flexible working procedure is by not giving a permitted reason, taking longer than three months to give you a decision, or by giving reasons that are not factually correct.
Unfortunately, there is currently no legal requirement for your employer to invite you to a meeting to discuss your request, but if they do then these are some negotiating tips. There is no suggestion that the meeting should be face-to-face, a meeting over telephone would be acceptable. Once the new rules come into force, your employer will be required to consult with you if they are unable to accept your request.
The current ACAS guidance says it is good practice to allow you to be accompanied by a colleague but does not say that the employer must or even should allow this.
If you cannot attend a meeting, your employer should rearrange it. If you fail to attend two meetings then the employer can take your request to be withdrawn, although they should find out and consider your reasons for not attending first.
This guidance applies to initial meetings and (where allowed) appeal meetings.
It is important to note that if your flexible working request is accepted, it will form a permanent change to your contract unless you or your employer specifies that the arrangement should be temporary.
The regulations do not refer to trial periods although the current ACAS guidance recommends a trial period where the employer is not sure how the flexible working change will work in practice. It is common for employers to allow a trial period of 3 or 6 months of a flexible working arrangement. It may be useful to ask for a trial period if your employer is reluctant to accept the request, to convince your employer that the arrangement will work. If your employer refuses to allow a trial period, you could argue that your employer has not dealt with your request in a reasonable manner.
If your employer gives you a trial period, you can agree with your employer to extend the time for them to make a final decision on your flexible working beyond three months of your original request. You will also want to agree review points to deal with any concerns and agree that if no concerns are raised that the request will be approved and be a permanent change.
What happens if my employer agrees to my request
If your employer accepts your request, the new flexible working pattern will be a permanent variation to your contract of employment, unless you agree otherwise. Your employer should provide you with a statement in writing confirming changes to your employment terms and conditions usually contained in your employment contract or statement of particulars of employment, within one month of the changes taking effect. This is required by section 4, Employment Rights Act 1996.
Your employer may do this by either issuing a new contract setting out the new agreed terms or set out in writing the terms and expressly amending the contract with effect from a stated date.
A reduction in hours will usually result in reduced pay, benefits and paid leave. You should make sure that any new terms are agreed before the change takes effect. If you are moving from full time to part time you should not lose out on the pro rata equivalent of terms that full time employees enjoy. If you do have benefits withdrawn this could amount to a form of discrimination because you are a part time worker – treatment if you are doing the same work – you should have a pro rata (or a proportion equivalent to the full time role) e.g. 3 days of a normal 5 day full time week would result in 0.6 x pay and 0.6 x holiday.
If you are moving to reduced hours and pay, your workload should also reduce. There should not be the expectation that you will have the same output if you are on lesser hours. It is important to raise the issue of job design in your meeting as to how the role will be performed, you should not experience less favourable treatment because you have moved to part time hours. See our page on part time workers for more information.
This is reflected in the current Acas Guidance which recommends your employer should confirm the agreed change in writing, together with the start date, how long the change is for (if it is temporary) and, if you have agreed a trial period, any dates the arrangement will be reviewed.
You may be asked to sign to confirm the agreement to the new terms or written variation to acknowledge acceptance.
If the new working arrangements do not meet your needs, or if your needs change due to a change in your childcare arrangements, there is not currently the possibility of making a further statutory request for 12 months from the date of your original request. You could make an informal request and seek to renegotiate your work pattern to better fit with your caring responsibilities.
What to do if your employer refuses your request
If your employer refuses your request, see our articles on What to do if your flexible working request is refused, and Flexible Working and discrimination for what action you can take.
Under the flexible working legal framework, your employer can only refuse your request for a ‘permitted business reason’. These are:
- 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 you propose to work.
- Planned structural changes.
Even if your employer refuses your request for a permitted reason, you may still be able to challenge their refusal if the Equality Act 2010 applies.
The permitted reasons are quite broad, and unfortunately it is generally fairly easy for an employer to rely on one or more of these reasons when rejecting an application. In considering whether not the reason for refusal correctly falls within one of more of the permitted reasons, the Tribunal’s role under the Flexible Working Regulations is limited to checking that your employer has followed the correct procedure. They do not have the power to really scrutinise your employer’s decision.
However, employers must also comply with the Equality Act 2010 (if it applies) when dealing with flexible working requests. This means for example, that if you are making the request due to childcare or caring responsibilities or a disability, your employer must ensure that in refusing your request, they are not discriminating against you on the basis of your sex or disability. This applies to all flexible working requests, irrespective of whether you are making a statutory or non-statutory request.
Claims relating to flexible working requests will often have a discriminatory element – discrimination claims require the Employment Tribunal to actually look behind and scrutinise the employers decision to refuse. In addition, the potential awards that a tribunal can make for discrimination are much higher than for breaches of the Flexible working Regulations.
Employers are often aware of their requirements to comply with the Flexible Working Regulations (which aren’t too onerous) but often are unaware that they must also comply with the Equality Act which requires much more careful consideration of your request.
Your employer may also refuse your request under the regulations if you are not eligible to make a statutory flexible working request (e.g. if you have not been employed for 26 weeks or you have already made a request in the last 12 months). However, you may be able to challenge this refusal if you have made a request because of your caring responsibilities or because of a disability. See our pages on what to do if your employer refuses your flexible working request and Flexible working and discrimination for more detail.
You may wish to share our Flexible Working Factsheet with your employer to help them understand the law on flexible working requests.
Frequently asked questions
Here are some of the most common questions about flexible working that we receive on our helpline.
My employer hasn’t followed the flexible working procedure properly
First of all, make sure that you have made a formal request for flexible working which contains all the points required by the law. Keep a detailed record of what happens and of conversations you have – you can do this by sending emails to yourself with a summary of conversations you have in relation to your request so you have time-stamped notes setting out your experience that you can use as evidence to show how your employer has breached the procedure.
You could send them a letter (keep a copy) reminding them of the time limit for the written decision, and, if you still don’t get a response, go to the next stage of the procedure, an internal appeal or a grievance.
For more, see our article on what to do if your flexible working request is refused.
Can I take my friend or colleague to a meeting with my employer?
You don’t have a legal right to take a friend or colleague to a flexible working meeting. It may be worth asking a colleague even if initially you think it would put them in a difficult position. You can agree on their level of involvement and just ask them to be there for moral support or to make notes.
You can ask your employer if they would agree to your taking a friend or colleague, although whilst the ACAS guidance recommends employers allow employees to be accompanied, they don’t have to let you.
Even if you go to the meeting on your own, it’s a good idea to run through what you want to say with a friend or colleague beforehand to help you feel more confident. Check with your employer, sometimes they will let non-colleagues (for example Trade Union Representatives) attend meetings (although they don’t have to).
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.
The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.
We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.