Managing requests for flexible working

A flexible working request is a request by an employee to change their hours of work, days of work or place of work. A woman returning from maternity leave is entitled to request a change in her working patterns, and so are fathers, same sex partners and certain other employees who care for children.

A flexible working request is a request by an employee to change their hours of work, days of work or place of work.
An employee returning from maternity leave has a statutory right to request a change in her working patterns.
Fathers, same sex partners and certain other employees who care for children also have a statutory right to request a change in their working patterns.
It is a good idea for employers to discuss possible changes to working patterns with an employee before she goes on maternity leave and to encourage her to make any request before she returns to work, wherever possible. It can take several months to organise a change to an employee’s working patterns.
Employers and employees may find it useful to put a Flexible Working Policy in place. An employer may receive a request at any time, not only from new parents but also from mothers and fathers with older children.
When an employee makes a request for flexible working, both employer and employee must follow a specified procedure with strict time limits.
An employer must consider the employee’s request seriously and can only refuse a request for one of the prescribed business reasons.
It is a good idea, where an employer does not agree to the employee’s initial request, for the employer to discuss alternative options with the employee.
There are circumstances where a refusal to allow an employee to change their working pattern may amount to sex discrimination. It is important that an employer considers a request carefully.

Who Can Apply

An employee can request a change in their working patterns if they have worked for their employer for at least 26 weeks and have or expect to have responsibility for the upbringing of a child (including an adopted child) who is under six years old (or under 18 if the child is disabled). The change in their working patterns may be a change to their hours of work, days of work or place of work. For example, they may ask to work part time, start work an hour later, or work from home.

Eligible employees include the parent, adoptive parent, guardian or foster carer of the child. An employee married to, living with, or the partner of that person is also eligible to request flexible working. The latest a request can be made is 14 days before the child’s sixth birthday (or 18th birthday if the child is disabled).

From 6 April 2007, employees who care for qualifying adults may also apply for flexible working arrangements. For more information, contact Acas.

The Procedure

An employee can make only one request every 12 months [different rules apply for police officers].

Both employer and employee must follow a specified procedure with strict time limits. If the procedure is not followed by the employer, the employee may bring a claim in an employment tribunal.

Time limits can be extended but only where this is agreed in writing between the employer and employee.

The employee initiates the procedure by making a formal, written request to the employer. The request should include details of the change in working patterns applied for and the date on which it is proposed the change should take effect. The employee should also explain what effect, if any, he or she thinks making the change would have on the employer and how, in his or her opinion, any such effect might be dealt with.

The employer may agree to the employee’s request to vary their working patterns without following the complete procedure. If so, the employer must write to the employee within 28 days of the employee’s request. The letter must set out the agreed changes to the employee’s working patterns and the date these are to commence.

In the absence of an immediate agreement to the employee’s request, the employer must arrange a meeting within 28 days to consider the employee’s request. An employee has the right to be accompanied by a work colleague or trade union official working for the same employer at the meeting.

An employer must consider the employee’s request seriously and can only refuse the request for one of the prescribed business reasons. The employer must notify the employee in writing of its decision within 14 days of the meeting.

The employee must be given the opportunity to appeal the employer’s decision if he or she does not agree with it. The employee must outline in writing the reasons why he or she thinks the decision is wrong within 14 days of the employer’s decision.The employer must then organise an appeal meeting to consider the employee’s appeal. An employee has the right to be accompanied by a work colleague or trade union official working for the same employer at the appeal meeting.

The employer must notify the employee of its final decision within 14 days of the appeal meeting. If the employer agrees to vary the employee’s working patterns, it should set out in writing what the agreed change is and when it is to start. If the employer does not agree to any change, it should provide the employee with it reasons. Read more on The procedure for making a request for flexible working under the ERA in England and Wales and Scotland.

Permanent Change

Any changes put in place will be permanent unless the employer and employee agree otherwise. For example, the changes could be put in place for a three-month trial period and then reviewed.

Sex Discrimination

There may be circumstances where a refusal to allow an employee to change their working patterns amounts to sex discrimination. For example, an insistence on full time working may give rise to a claim of indirect sex discrimination. An employment tribunal will scrutinize the employer’s justification for its actions.

Relevant Legislation

Employment Rights Act 1996
Employment Relations Act 1999
Employment Act 2002
Work and Families Act 2006
Flexible Working (Procedural Requirements) Regulations 2002
Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002
Sex Discrimination Act 1975

Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.

Additional resource

Guidance on the procedure to be followed by employers and employees in England and Wales or Scotland

Guidance on flexible working in England and Wales or Scotland

Acas guidance on flexible working

Working Families factsheet for SMEs on managing flexible workers