So, you’ve just made an offer of employment to a great candidate for a full-time job vacancy. Better still, they have accepted and started work. Ten days later, they tell you that having thought things over, they want to work part-time and from home. Is this allowed? Where do you stand as an employer, particularly if the request has upended all your plans for the role in question?

HR professionals need to be aware that the law on flexible working has changed with effect from 6 April 2024 and in some very important ways. Relying on your old flexible working policy is likely to land you in trouble. In this article we explore the regime for requesting flexible working, highlighting both what is changing and what is staying the same.

Employees have long had the right to request flexible working, but only after they have been employed for 26 weeks. From 6 April 2024 however, that has changed fundamentally. The right to request flexible working has become “a day one right.” That means, that any employee, however long they have been employed, can make a request.

What kinds of changes can an employee request?

Here the law has not changed – an employee can still request: changes to their hours, to the times they are required to work, or to their place of work. All sorts of changes are covered under these three categories, including requests to work part-time, to work from home, to job share, to stagger hours and to work compressed hours.

What else is changing then? Firstly, employees no longer have to state, as part of their request, how the request will impact their employer. That is important. In the past, employers could reject requests that were not properly formulated, because the employee had not explained how their desired change of working pattern might affect the employer’s business. That is no longer the case.

Employees must still make their request in writing, date it, state that it is a request under the statutory procedure, identify the change they wish to have made and the date they would like it implemented. They must also state whether they have made a previous flexible working request, and if so, when they made it. However, while in the past employees might have had their requests rejected because they omitted some of this information, that  is less likely to happen going forward. This is because a new ACAS Code of Practice on Requests for Flexible Working, which came into effect at the same time as the legislative changes, states that employers should now be making clear to their employees what information needs to be included in a valid request. Reading between the lines, HR professionals should be reviewing their flexible working policies, to make sure that they provide this information to their employees from the outset.

The new law also allows employees more than one crack of the whip: while prior to 6 April, employees could only make one flexible working request a year, now they can make two statutory requests in any period of 12 months.

Employers who hope that by playing for time, an employee might withdraw their request, will be disappointed: the time-frame within which employers must make their decision has also been truncated. Previously, employers had three months to deal with a flexible working request. Now the time period has been reduced to two months. The parties can agree a time extension, but the starting point is that the employer is expected to deal with the request more speedily than previously.

The employer can still refuse the request on the same grounds as before, namely:

  • The burden of additional costs
  • An inability to reorganise work among existing staff
  • An inability to recruit additional staff
  • A detrimental impact on quality
  • A detrimental impact on performance
  • A detrimental effect on ability to meet customer demand
  • Insufficient work available for the periods the employee proposed to work
  • Planned structural changes to the employer’s business

However, employers need to bear in mind that even if they can bring themselves within one or more of these grounds, the rejection of a flexible working request, may still be discriminatory. For example, a blanket policy of rejecting part-time working requests, may be found by an Employment Tribunal to constitute indirect sex discrimination on grounds of sex. This is because the vast majority of the part-time labour force is female and such a policy will likely put female employees at an unfair disadvantage.

Further, even if the employer is minded to reject a flexible working request, the new law requires the employer to consult with the employee before doing so. The ACAS Code suggests that the employer should invite the employee to a meeting to discuss the request. Further, the employer should tell the employee that if they wish, they can make a request to be accompanied at the meeting by a fellow worker, a trade union representative or an employed trade union official. Although there is no actual legal right to be accompanied, ACAS takes the view that allowing this is good practice.

The ACAS Code

The ACAS Code has further guidance on the conduct of consultation meetings, which employers would do well to incorporate into their flexible working policies. In particular, if the original flexible working request cannot be accommodated, employers are encouraged to consider alternative working patterns and/or potential modifications to the original request. ACAS also notes that it may be helpful to implement a trial period to assess the feasibility of the requested arrangement (paragraph 17 of the ACAS Code).

If the employer rejects the request, can the employee appeal? As ACAS acknowledges, there is no statutory right to appeal, but paragraph 25 of the ACAS Code explains that allowing the employee an opportunity to appeal is good practice. We anticipate that in the light of that recommendation, relatively few employers will refuse the employee an opportunity to appeal.

Returning to the flexible working request from the employee who has only just started working, can’t the employer simply avoid the request by dismissing the employee? After all they don’t have two years’ service and so surely cannot bring a claim of unfair dismissal? In our view, firing the employee would be very unwise. The employee is likely to argue that they have been dismissed for asserting a statutory right to request flexible working. Such a dismissal is automatically unfair regardless of length of service.

At the end of the day, it is becoming ever clearer that many employees value flexibility and the new rules provide a sensible framework within which an adult conversation around working patterns can take place. However, HR professionals need to make sure they are alive to the legislative changes and update their policies and procedures for dealing with flexible working requests, taking into account both the letter of the law and the ACAS Code.


By Henry Clinton-Davis – Partner, Arnold & Porter.