Flexible Working Law:
What you Need to Know
Currently, all employees who’ve been with their employer at least 26 weeks have a legal ‘right to request’ flexible working. Employers don’t have to agree to the request but if they refuse, they need to provide one or more of eight ‘permitted business reasons’.
A new law, the Employment Relations (Flexible Working) Bill, will make requesting flexible working easier, which together with a ‘day one right’ to request flexible working, is due to come into force in Scotland, England and Wales by mid-2024. This page outlines workers’ current flexible working rights and employers’ legal obligations, and how these will change under the new legislation.
Current flexible working rights
Currently, employees can make one formal request, known as a statutory request, in any 12-month period.
Many flexible working arrangements don’t need a statutory request because they are relatively small changes that can be informally agreed with your line manager. For example, if you need a few hours off during the day for an appointment, you’d like to work from home while a tradesperson is in your house, or you’d like to make a small change to your start and finish time, a conversation with your manager may be all that’s required to get the flexibility you need.
If you want to reduce your hours, or make other significant changes to your work pattern such as working part time or from home a set day each week, you will need to make a formal statutory request.
Many flexible working arrangements don’t need a statutory request because they are relatively small changes that can be informally agreed with your line manager.
How to request flexible working?
To make formal request for flexible working, you need to:
Depending on any internal policy, you need to send your request to your line manager and your employer must give you an answer within three months.
Your employer’s policies may give you the right to appeal if they refuse your request. If you feel the decision is wrong or unfair, this should be set out in your appeal. The appeal process is part of the request and therefore the response to the appeal should fall within the three-month time frame.
An Employment Tribunal claim can only be made if your employer does not follow procedural requirements, or a rejection is based on incorrect facts.
However, the Act does protect employees from being treated badly by their employer because of a flexible working request, and your employer cannot dismiss you as a result of a flexible working request.
In addition, separate legislation, the Equality Act 2010, protects employees from discrimination. This means it’s illegal for employers to refuse flexible working requests because of discriminatory opinions, such as sexism, racism, or ageism.
What are employers’ legal obligations for flexible working?
Under the current flexible working legislation, employers must consider formal requests for flexible working arrangements in a “reasonable manner”. This means that a decision must be given within three months, and the employer must weigh up the benefits for the employee and the business of a new flexible working pattern against any potential business impact.
Employers can refuse requests but they must provide a at least one of eight permitted business reasons, such as that customer service would be negatively affected. Employers cannot refuse requests simply because they don’t like different ways of working.
It is good practice for employers to discuss a request with the employee if they don’t feel it will work and suggest alternative options. This is one of the measures set out in an ACAS code of practice for employers handling flexible working requests. While this is not a legal obligation, an employment tribunal would look at whether the code had been followed.
What will change when the new flexible working law comes into force?
A new piece of legislation called the Employment Relations (Flexible Working) Bill has now received royal assent and will become law, most likely by summer 2024.
The new law will amend the existing flexible working legislation (Employment Rights Act 1996) to change the current right to request flexible working and simplify it in the following ways:
- Employees won’t have to explain what effect they think their proposed work pattern will have on their employer.
- Employees will be able to make two flexible working requests in a 12-month period instead of one.
- Employers will be required to consult with the employee before being allowed to refuse an application.
- Employers will have to make decisions more quickly within two months, not three.
The UK Government has also committed to giving employees a ‘day one right’ to request flexible working at the same time the new legislation comes into force. This means employees will be able to ask for flexible working from their first day with a new employer, instead of having to wait 26 weeks first. This element complements the new law but is separate from a legal perspective because the UK Government already has the legal power to introduce a ‘day one right’ through what’s called ‘secondary legislation’. This means the UK Government can create a new regulation and agree it with both Houses of Parliament – but via a much quicker and simpler process than a brand new law.
Specialist employment lawyer, Marianne McJannett, who is Head of Employment at Bellwether Green, kindly checked our content so you can rest assured it’s up to date and legally accurate.
She also had this message for employers: “It’s an incredibly exciting development to see this important piece of legislation receive royal assent. What we’re seeing with this legislation is a shift in the onus for employers to become more flexible.
“So many businesses were able to work flexibly during the pandemic when they required staff to work from home or amend their hours, so it’s shown more flexibility is possible. It’s hoped that the spirit of the new legislation will be beneficial to both staff and employers.
“Employers should start thinking now about revising their policies to make sure they’re up to date, and take time to ensure that staff are training in understanding and handling requests. Businesses should also think about the different types of flexible working that could work for them, and the benefits that flexible working can bring.”