Tips for Managing Flexible Working Requests

In this episode of DC Talks, Emma O’Connor explains how employers should approach flexible working requests in practice. She outlines the legal framework, highlights the need for a fair and consultative process, and explains when requests can be refused with clear, evidence‑based reasoning.

Looking ahead, she emphasises that flexible working is now a baseline expectation, with upcoming reforms increasing scrutiny on employer decisions—making a proactive, commercially aware approach essential.

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Emma O’Connor: 00:08

Hello and welcome to DC Talks, a podcast series from workplace specialist law firm Doyle Clayton, where we take a closer look at a legal, HR and leadership issue shaping the modern workplace. I'm your host, Emma O'Connor, Employment Partner and Head of Client Training. In this month's episode, we're focusing on the statutory right to request flexible working and crucially, how to get it right in practice. Before I get started, a quick reminder that this is a podcast, where I will be covering key headlines and looking at practical considerations, but not giving any legal advice. If you would like to discuss anything raised today, you will find details of how to get in touch with us in the show notes. So, what am I going to be discussing? Firstly, looking at the difference between agile and flexible working, then looking at the statutory framework for making a statutory flexible working request, looking at how businesses can manage those requests in line with the ACAS code, whether and how businesses can say no to a request, looking at the legal and cultural risks and then what's coming next under the Employment Rights Act 2025, with reforms to the flexible working regime. So, agile versus flexible working, what is the difference? Well, I think often there can be some confusion around we have a flexible working policy, we have an agile working policy. And I think it's really important that we focus on language and also purpose because I do think flexible working, agile working can often be used interchangeably but they are not the same. So, when we think about flexible working, we're thinking about that statutory right to make a flexible working request so it is a right that individuals have based in law. That usually means that somebody's requesting to change their hours or place of work on an individual basis and that right to make a request is obviously employee led. In contrast, when we think about agile working, this is often broader and more strategic. Agile working policies are employer led and they usually look at culture, different parts of the business, being able to work perhaps more agilely than others and also looking at technology. But, of course, we can't forget that when businesses do have agile working policies, it is really important that those policies are applied consistently. Also making sure that businesses have rights within those to obviously monitor the effectiveness of the policy and also rights to maybe change where employees are working, but again, always worth just double checking what the policy says how it has been interpreted and also how long those working practices have been in place. Again, very much thinking about the practical steps that businesses have taken. We've seen, haven't we, lots of businesses that are now trying to row back on agile working practices that were implemented a few years ago but it's not always as easy as we're going to rip up the policy and everyone is back into work. So, just some red flags there to any organisation that's perhaps thinking we want to change the way in which people work. It is not always that easy, so please do take advice. So let's have a think, shall we, about the statutory right to request flexible working and really thinking about that legal framework. Well, all employees have the right to request flexible working from their first day of employment. And that was an important change that happened a couple of years ago. And as I said, the request will usually relate to a change in a person's hours of work or their working times or their workplace location. Employees can now make 2 requests in any 12 month period. But just to remember, they can only have one live request running at any one time. Once that flexible working request is received, time is pretty tight and employers have to make a decision within two months of receipt and that would include any appeal. Now, it's quite interesting that the ACAS code does advocate for giving employees the right to appeal against any flexible working decision and certainly in the policies that I draft for clients, I would typically add in the right of appeal. But again, remembering it is not separate to that two-month period, it falls within it. Really importantly to remember, that this is a right to request flexible working, it is not a right to have that request approved. So, let's think about how businesses should manage those flexible working requests. Now we used to have a rather elaborate system where letters and meetings had to be called within 14 days or 28 days of things happening. We don't have that anymore, save for obviously the process needs to be completed within two months but what we do have is an ACAS code of practice relating to the management of flexible working requests and the ACAS code really does focus on this theme that employers must handle requests in a reasonable manner. So, what do we mean by a reasonable manner? Well, yes, the ACAS code does helpfully set out what it would consider as reasonable and also remember that the foundations of the right to request flexible working does come from statute. Some of those obligations have also been incorporated within the ACAS code so it is a really good first port of call. So step 1 is obviously to acknowledge and assess the flexible working request. Certainly confirm that the request has been received and obviously, if there are any queries about what the employee is requesting, then do go back and ask. And remember here that it's the right to request for any reason. Some employees request, yes, for family reasons for childcare, so requesting flexible working following a return from maternity leave but often we see employees making flexible working requests, perhaps as a sort of lead into retirement. It's not for the employer to judge whose request is more deserving and I think that's an important point to make and certainly the ACAS code will say that you take the request and you consider the request at the point that it is made. So, acknowledge the request, assess it objectively as well. Really considering the business impact but also the benefits of accepting the flexible working request for the employee. The code really does encourage the starting position is one of openness on the part of the employer. Then we need to think about the next stage. Well, the next stage is around consultation. So again, a sort of shift in emphasis here that we saw around consulting with the employee. Now, if the employer can accept the request based on a paper exercise, then great and I'll talk about what happens with accepting that request in a moment but if the employer is unsure, then there is this obligation to consult and certainly employers should not be rejecting a request without first giving the employee an opportunity to meet with you and talk about their request. Consultation should be meaningful and we see that word don't we use quite often when we talk about consultation and also the employer should not be unreasonably delaying having that meeting. And again, think about where that meeting is going to be held. Is that reasonable? Also think about the person to whom will be conducting that meeting. Typically, it's the line manager and with the support of HR. But again, think about the usual things that we consider when we're setting up a meeting. Is it reasonable? Do we need to make any reasonable adjustments to that meeting? Making sure that the employee knows what's expected at that meeting and who is going to be there. So yes, the purpose of the consultation is to obviously discuss the request that has been made. Another change is that it is not now for the employee to say why the request would work. That's again another change so it's putting less impact and emphasis on the employee to sort of do the employer's job for them but certainly during the consultation process, we should be looking at considering those alternatives if that original request doesn't work and really having an open conversation with the employee and allowing them to come back with their thoughts as well. Think about trial periods, if that may be of importance and relevance. So not a tick box exercise. It's a genuine opportunity to discuss the flexible working request. So keep a record of that meeting as we advise with all meetings. Do think about whether the employee should be able to bring someone with them to that meeting. Again, the ACAS. code of practice does encourage that as best practice. That might be something that we need to think about. And also remembering reasonable adjustments just because your policy is mute on the point about accompanied employees. So the entire process, as I've said, including that right of appeal has to be completed within the 2 months of receipt. unless that time period has been extended, but that must be extended with the agreement of the employee. Once the manager has had the opportunity to consider the request, again it must be communicated clearly and confirmed as always in writing. It might be that the change has been accepted and just to repeat again that if the change has been accepted, this is a permanent change to an employee's contract of employment which will obviously have, depending on the type of request, of course, but potential there to have a knock on effect on one's pay, or the benefits, so employees need to understand that if they're asking to work three days a week, that will impact upon their pay and also their benefits so they need to understand that as well. There might be some other issues that need to be clarified as well, within the acceptance letter. If the employer is recommending that there be a trial period, I think what's really important is to set that out clearly, set out any conditions or any other sort of expectations that the employer is wanting to put in place, just so everybody is clear. I think the other important thing about a trial period, is almost for the business to think, well, what's going to happen if the trial period doesn't work? Of course, we're positive and we want it to work, but actually if it doesn't, what then happens? And I think that's something to think about from a business perspective at the point where you are thinking about a trial period. Now, what happens if the application is not going to be accepted? There are statutory grounds, there are 8 statutory grounds, in fact, under which an employer can reject a flexible working request and I think what's really vital is that the business really do turn their minds to these statutory grounds and don't just sort of say, “oh, well, it's going to be extra cost or inability to recruit”. What is vital now and what is going to be of real importance when we think about the changes that are coming under the Employment Rights Act is that employers and line managers really do need to turn their mind to the rejection and think much more objectively as to why they are saying no, but also being able to provide detail to explain to the individual why their request has been rejected. Sometimes I see letters which say, I'm very sorry, but we're rejecting your ground because of additional costs. But it gives the employee nothing and no detail. So you really need to have that evidence base, that objective business reason and evidence to be able to support the decision. As ACAS will recommend giving the employee the right of appeal, and again, this really does allow the employer to demonstrate that it has given thought to the employee's request. And one of the outcomes of the appeal might be that the request is accepted or it might be that the original decision is upheld. So as I said, you can say no. but only if you have one or more of the eight statutory business reasons, which includes, as I've mentioned, additional cost burden, impact on performance or quality, inability to reorganise or recruit, impact on customer demand, and also the fact that there are planned structural changes within the workplace. It is only those eight statutory grounds that can be used to refuse, you can't deviate from those grounds. But again, it's about being able to evidence the reason, not just state it. So legally and culturally, of course there are risks around the rejection of flexible working. And from a legal perspective, if the process isn't followed, that can give rise to a tribunal claim and compensation can be awarded for procedural breaches of the statutory flexible working regime. But I think more importantly is where a request is rejected, there is that discrimination risk, particularly around indirect discrimination on the grounds of sex and also potentially disability as well. Certainly, when employers are meeting with employees or in their policies, do ask the employee to include within their request letter whether the request is made because of any reasonable adjustment or if there are any factors that the employer needs to understand, such as it is for childcare, etc. So again, the ACAS code also makes clear that employers must avoid discrimination when handling requests. And I think that, yes, complying with the law is vital in this area to avoid claims. But I think we have to think that there are cultural risks as well to saying no to a flexible working request. I think the takeaway really is that if your business doesn't offer it, your employee will leave and they will find somebody else who will accept their flexible working request. So, I think there has been a huge shift around flexible working and certainly now it seems to be a baseline expectation. And also I think that traditionally it was seen as women would work part time but actually that is not the case now and I think we should not be making those stereotypical judgments. Certainly, we see lots of male colleagues within workplaces asking to work more flexibly. So looking ahead, what is changing? Well, the direction of travel is clear, isn't it, when we think about the Employment Rights Act. is that employees are being given greater rights. And that's certainly true when it comes to flexible working. hat those changes will mean is that there will be an increased scrutiny, not just of have you followed a fair process, have you acted reasonably, but also the quality of the decision that the employer is reaching. So what we're going to need is a stronger justification from employers before they refuse a flexible working request. There's also going to be a greater emphasis on consultation being more meaningful, which will mean more consistent decision making, better documentation, better evidence of being able to show that. For example, if you're seeking to rely on the argument, which is “Well, we're not going to be able to recruit” - well, let's see the evidence of that and also the fact that part of the decision making processes is also about employers not making assumptions. Well, of course, we can't possibly have that role being worked part time. I think certainly the changes that are coming in 2027 around flexible working are going to really change that whole mindset so there is an opportunity to really think about upskilling our manager population, making sure that they are aware of their obligations now and obviously really thinking about 2027 and how really, businesses are going to have to up their game when it comes to making sure you can objectively justify why a request has been rejected. So yes, have a fair process, of course, but also let's really focus on decision making as well. So just to recap, flexible working is a legal right to request flexible work and it's not a request to work flexibly. I think we need to obviously focus on the type of request and I think there are obviously other issues to consider here, particularly if an individual is asking to work maybe outside of the country and what risks that might bring as well, thinking about establishment and any tax risks. So again, something else to throw into the mix. Requests must be handled reasonably. I would recommend going to have a look at that A cascade because is really helpful and there must be consultation before a refusal takes place. Really think about decisions being evidence-based and also the way in which we conduct meetings. Are we open? Are we seeking the collaborative and constructive views of employees? Do think about the risks of getting it wrong, be that tribunal claims or breach of the flexible working procedure, or could it be discrimination cases? And also if this goes wrong and employees feel that they have to leave, there is then that increased risk of constructive unfair dismissal claims. And of course, we do have to have another eye on 2027 and obviously January of 2027, when the qualifying period of service for unfair dismissal reduces from two years to six months, in ordinary dismissal cases. The stakes are getting higher. It's becoming more complicated for employers and also those risks are increasing. But flexible working is powerful for retention, inclusion and also performance. So we shouldn't lose sight of the benefits of encouraging and supporting flexible working where we can. So I hope that's given you some tips and some thoughts around flexible working with an eye as ever on 2027. Thank you very much for listening and to hear more of our podcasts, DC Talks, then please do check out your podcast provider, but also information can be found on our website. Until I get the chance to speak to you again, thank you very much for listening and don't forget to subscribe. Thank you very much.