Until April 2024, employees had to wait 26 weeks before they could ask to work differently. That changed. The Employment Relations (Flexible Working) Act 2023 amended the Employment Rights Act 1996 to make flexible working requests a day-one right — employees can submit a request from their very first day of employment. There is no qualifying period.
The change is significant for employers. It means that an employee who joins on a Monday can hand you a formal flexible working request on a Tuesday. You cannot simply reject it because they are too new. You must treat it as a proper statutory request and follow the correct process.
There is also a second major change: employees may now make two statutory requests in any 12-month period, up from one. Each request must be considered on its merits. If an employee has already made one request that year — even one you agreed to — they can make a second, and you are legally obliged to engage with it.
What Changed in April 2024 regarding Flexible Working?
• Day-one right — no 26-week qualifying period
• Two requests per year (previously one)
• Employer must consult the employee before refusing any request
• Decision period reduced from 3 months to 2 months
The duty to consult before refusing is new and important. Previously, employers could simply decline a request in writing by citing one of the statutory business reasons. Now, you must hold a meeting with the employee — or at least have a genuine consultation conversation — before any refusal. Skipping that step is a procedural failure that could lead to a tribunal claim.
These reforms reflect a broader shift in government policy. Flexible working is increasingly treated not as a privilege employers can grant or withhold, but as a default expectation — one that employers must actively justify overriding. The Employment Rights Act 2025 takes this further still, as we discuss later in this guide.
Flexible working is not just about working from home. Under s.80F of the Employment Rights Act 1996, an employee can request a change to any of the following: hours of work, times of work, or place of work (including a requirement to work from home). That covers a wide range of arrangements.
| Type | What it Means | Employer Considerations |
| Part-time working | Reducing contracted hours, e.g. from 40 to 25 per week. |
Common after parental leave; indirect sex discrimination risk if refused without justification. |
| Flexitime | Same total hours over fewer days, e.g. 4x10-hour days. |
Operational cover can be a valid reason to decline but must be evidenced. |
| Job sharing | Employee chooses start/finish times within agreed core hours. |
Employer can decline if no suitable job-share partner is available. |
| Remote/hybrid working | Work from home all or part of the week. | Post-pandemic, refusing remote work for roles that can clearly be done at home carries greater tribunal risk. |
| Term-time working | Employee works only during school terms, with unpaid leave in holidays. | Strong protective overlap with indirect sex discrimination for female employees with childcare responsibilities. |
| Annualised hours | Total annual hours agreed; employee varies week to week within that total. | Useful in seasonal businesses; requires robust tracking. |
| Staggered hours | Different start, finish, and break times from the norm. | Often requested to avoid commute peaks or for medical/family reasons. |
When an employee submits a request, they must specify what change they want and when they want it to take effect. They don't need to use any particular form, but the request must be in writing (which includes email). Many employers provide a standard form to ensure they capture all the necessary information.
There is a specific procedure you must follow when you receive a flexible working request. Deviating from it — even if your ultimate decision would have been defensible can expose you to tribunal claims and compensation awards.
As soon as you receive a written request, acknowledge it. Record the date received: this starts the two-month clock. If the request doesn't contain the required information (what change is wanted, when it should apply, and the fact that it is a statutory request), you can ask the employee to resubmit — but don't use technicalities to run down the clock.
You must genuinely consider the request. That means looking at what is actually being asked, thinking about how it would work in practice, and identifying whether there are any business reasons that make it unworkable. 'We've always done things this way' is not a business reason. Nor is personal preference. You need to assess operational impact.
Before refusing, you must consult. This is a post-April 2024 requirement. Hold a meeting — in person, by video, or by phone — to discuss the request. Explain any concerns you have. Give the employee a chance to address them or to suggest a compromise arrangement. Keep a note of the discussion.
Consultation is not a rubber-stamp exercise. Tribunals will scrutinise whether it was genuine. If you had already decided to refuse before the meeting took place, that is likely to count against you.
You must respond in writing within two months of receiving the request (the full process — meeting, decision, and any appeal — must be completed within that period, unless the employee agrees in writing to an extension). The written decision must:
• State whether the request is approved or refused
• If approved, set out the agreed changes and when they take effect
• If refused, identify the specific statutory business reason(s)
• If refused, explain why that reason applies in this case
• Notify the employee of their right to appeal
Timing Pitfall
The two-month clock runs from the date you receive the request — not from the date of the
consultation meeting. If you delay scheduling the meeting, you may not have enough time to
complete the full process, including any appeal. Build in enough lead time.
Although there is no statutory right of appeal under the ERA 1996 (the right of appeal was removed in earlier reforms), ACAS strongly recommends offering one as a matter of good practice. Including an appeal stage in your flexible working policy significantly reduces your tribunal risk. If the employee goes straight to a tribunal without having exhausted an internal appeal, a tribunal may take a dim view of both parties — but it will take a dimmer view of you if no appeal route was offered.
You can only refuse a flexible working request on one or more of the eight statutory business grounds set out in s.80G(1)(b) of the Employment Rights Act 1996. You cannot refuse on any other ground — even a genuinely sensible commercial reason that falls outside this list is not sufficient in law.
This is one of the most important things to understand about the regime. You must identify, in your written refusal, which of the eight grounds applies — and then explain why. A generic statement that the arrangement "wouldn't work for the business" is not enough.
Ground 1 — Burden of Additional Costs
The proposed arrangement would impose additional costs on the business that are unacceptable. For example, requiring a role to be covered by agency staff because the employee will work fewer days. Note: the cost must be genuinely unacceptable — not just inconvenient.
Ground 2 — Detrimental Effect on Ability to Meet Customer Demand
The change would impair your ability to serve customers or clients adequately. If a client-facing role requires attendance on specific days and the employee wants to exclude those days, this ground may be available — but you should consider whether adjustments to cover could mitigate it.
Ground 3 — Inability to Reorganise Work Among Existing Staff
You cannot reasonably redistribute the work to colleagues to cover the gap created by the
requested arrangement. This requires you to have actually considered reorganisation and concluded it is not feasible — not simply assumed it would be difficult.
Ground 4 — Inability to Recruit Additional Staff
Filling the gap would require hiring someone, and that is not practicable — for example, because the skills required are scarce or the role is too specialised to split between two people. Simply not wanting to recruit is unlikely to satisfy a tribunal.
Ground 5 — Detrimental Impact on Quality
The arrangement would reduce the quality of work or output to an unacceptable level. This might apply where continuity of individual involvement is essential — for example, complex project work requiring sustained input. Generic assertions about quality will not suffice.
Ground 6 — Detrimental Impact on Performance
Similar to quality, but focused on measurable performance outcomes rather than the nature of the work. Evidence of how the arrangement would measurably reduce output or KPIs is helpful if you rely on this ground.
Ground 7 — Insufficiency of Work During Proposed Hours
There simply is not enough work for the employee to do during the hours they want to work. This might apply if an employee wants to work unusual hours when the business is not operating, or wants more hours than the role requires.
Ground 8 — Planned Structural Changes
You are planning changes to the business — such as a restructure, relocation, or change in working model — that would make the requested arrangement incompatible with the future direction of the business. This must be a genuine, concrete plan rather than a vague aspiration.
Common Mistake Employers Make for Flexible Working
Many employers refuse requests by citing a ground but failing to explain why it applies to this specific employee in this specific role. A tribunal can only overturn a refusal if you failed to follow the correct procedure or relied on incorrect facts — not on the basis that you made the wrong commercial decision. But if your explanation is inadequate, you may have procedurally failed, which is itself actionable.
Following the statutory procedure is the floor, not the ceiling. Employers who handle flexible working requests thoughtfully — going beyond the bare minimum - both reduce legal risk and improve retention. The two go hand in hand.
This is the area of greatest legal exposure. When you refuse a flexible working request, you may inadvertently be committing indirect discrimination under the Equality Act 2010 — even if that was never your intention. The two most common risks are indirect sex discrimination and disability discrimination
Women are statistically more likely to carry primary childcare responsibilities. A blanket policy requiring all employees to work full-time, fixed hours, or in the office five days a week puts women at a particular disadvantage. If you cannot objectively justify that policy — meaning you cannot show it is a proportionate means of achieving a legitimate aim — you risk an indirect sex discrimination claim under s.19 of the Equality Act 2010.
Objective justification requires more than pointing to customer demands or team cohesion. You need to show that the requirement is genuinely necessary and that less discriminatory alternatives have been properly considered and rejected for good reason.
If an employee has a disability under the Equality Act 2010 and their flexible working request is
connected to that disability, the duty to make reasonable adjustments under s.20 may require you to grant it — or something close to it — regardless of whether a statutory business reason technically applies. Refusing such a request without a careful adjustments analysis is high-risk territory. Always ask: is this request connected to a health condition? If so, get occupational health involved before making a decision. Document the assessment carefully.
| Principle | What This Means in Practice |
| Consider the role, not the person | Assess whether the requested arrangement is workable for this role not whether you like or trust this particular employee. Personal factors should play no part. |
| Explore alternatives | Before refusing outright, think about whether a modified version of the request - different days, a phased introduction, or a trial period - could address your concerns. |
| Document everything | Keep notes of any meetings, your reasoning, and the factors you weighed. If the matter goes to tribunal, contemporaneous notes are far more persuasive than reconstructed recollections. |
| Check for discrimination risk | Before issuing a refusal, ask: does the employee share a protected characteristic with a group that might disproportionately need flexible working? If so, can you objectively justify your decision? |
| Be consistent | If you have approved similar requests for other employees in comparable roles, you will struggle to justify refusing this one. Keep a record of decisions across your business. |
| Don't pre-judge | The decision must be made after consultation, not before. An approach to a consultation meeting with a closed mind is both procedurally flawed and discriminatory risk. |
Keep a written record of every flexible working request received, the outcome, and your reasons. If you refuse a request, your refusal letter should be detailed enough that a tribunal could understand exactly why — with reference to the specific statutory ground and the specific operational facts that triggered it.
Approved requests should also be documented carefully. Confirm the new working pattern in writing, including start date, any trial period terms, and what happens at the end of a trial. A poorly drafted approval letter can create disputes about what was actually agreed.
The Employment Rights Act 2025 represents the most significant overhaul of employment law in a generation. On flexible working specifically, the direction of travel is clear: the government intends to make flexible working the default position rather than the exception.
Under the reforms being introduced (expected to come into force in 2026 and 2027, subject to
commencement orders), employers will be required to take further steps to accommodate flexible working before they can refuse. The precise framework is still being developed through secondary legislation and ACAS guidance, but the core expectation is that employers must demonstrate that refusing a request is not reasonable — the burden shifts further towards justification.
Key Direction of Travel Under ERA 2025
• Flexible working increasingly treated as the starting point, not the exception
• Employers expected to proactively consider flexible arrangements — not just respond to requests
• Stronger expectation that alternatives will be explored before outright refusal
• Possible requirements to advertise roles as open to flexible working
• Enhanced protections against detriment for employees who exercise flexible working rights
Advertising roles as flexible — or at least open to discussion — is already emerging as best practice. Some larger employers are now required under voluntary commitments or industry standards to state whether a role can be done flexibly. The ERA 2025 may formalise something similar for all employers.
The practical implication for SMEs is that a policy of defaulting to refusal — even within the letter of the current statutory regime — will become increasingly untenable. Now is the time to review your working practices, identify which roles genuinely cannot be done flexibly and why, and build that analysis into your policies before it becomes a legal requirement.
Plan Ahead
The commencement timetable for ERA 2025 provisions is not yet fixed. Some elements are being phased in over 2025–2027. Keep an eye on ACAS guidance updates and government
announcements — or ask Neathouse Partners to keep you informed as changes come into force.
Trial periods are one of the most underused tools in flexible working management. Rather than feeling forced to choose between a permanent approval and an outright refusal, you can agree a time-limited trial of the requested arrangement and review it properly before making a final decision.
There is no statutory framework for trial periods in flexible working - they are a practical mechanism that both parties agree to. That means the terms need to be clearly spelled out in writing before the trial starts. Ambiguity about what happens at the end of a trial is a frequent source of dispute.
• How performance will be assessed during the trial
• Who will review the arrangement and when
• What happens at the end: does the trial automatically convert to a permanent change, or does there
need to be a positive decision to continue?
• The process if either party wants to end the trial early
A well-drafted trial period agreement should make clear that the trial is not a permanent contractual change - unless and until confirmed in writing. Otherwise, an employee could argue that a three-month trial became a permanent variation by conduct.
Don't just wait until the end of the trial to assess how things are going. Schedule informal check-ins — weekly or fortnightly — to discuss any issues early. If problems are emerging, raise them promptly. An employee who has heard nothing but positive feedback during a trial and is then told at the end that it hasn't worked will have a much stronger case that the real reason for ending the arrangement was something else.
Document what you observe. If customers are complaining, team members are picking up excessive cover, or quality is slipping, record it with dates and specifics. Vague impressions at the end of a trial carry little weight.
Trial Period Best Flexible Working Best Practice
Always confirm the trial arrangement and its terms in a short letter before it begins. Include: the
arrangement being trialled, the review date, the performance criteria, and the fact that this does not
constitute a permanent change to the employment contract. Get the employee to sign a copy.
Despite your best efforts, flexible working requests sometimes lead to formal disputes. Understanding the routes available to an unhappy employee helps you assess your exposure and respond appropriately.
The first line of challenge will usually be an internal appeal (if you offer one) or a formal grievance. Take both seriously. A well-run appeal or grievance process can resolve disputes before they reach a tribunal and will demonstrate good faith if the matter ultimately proceeds.
Treat an appeal as a genuine reconsideration — not a rubber-stamp of the original decision. Ideally, have a different manager hear the appeal. Ensure they review the request afresh, look at any new information the employee has provided, and issue a reasoned written decision.
An employee can bring a tribunal claim if you fail to follow the statutory procedure — for example, if you refuse without consulting, miss the two-month deadline, or fail to give proper written reasons. The tribunal cannot order you to grant the requested arrangement, but it can:
• Award up to 8 weeks' pay (subject to the statutory week's pay cap of £700 from April 2026, giving a
maximum of £5,600)
• Make a declaration that you failed to comply with your duty
• In certain circumstances, make an order requiring you to reconsider the request
The procedural compensation cap is modest. The real financial and reputational risk lies in what an employee can attach to a flexible working claim.
This is where employers face genuinely significant exposure. If the employee can show that your refusal amounts to indirect sex discrimination (or indirect discrimination on any other protected ground), they can bring a claim under the Equality Act 2010 in addition to — or instead of — the flexible working claim.
Equality Act compensation is uncapped. Awards regularly run into tens of thousands of pounds, and in cases involving serious career impact, can be substantially higher.
High Exposure Risk
A refusal of flexible working combined with the employee's subsequent resignation can give rise to a constructive dismissal claim on top of the discrimination claim. If the employee is a woman with childcare responsibilities who was refused part-time or hybrid working, the combined exposure — indirect sex discrimination, constructive dismissal, potential injury to feelings — can be very substantial. Take legal advice before refusing any request from an employee in a protected group.
Employees are protected against suffering any detriment because they made a flexible working request. If an employee is passed over for promotion, excluded from projects, given a poor appraisal, or treated differently following a flexible working request, they can bring a detriment claim. Make sure managers understand this — the request must not be held against the employee in any way.
Before lodging a tribunal claim, an employee must contact ACAS for early conciliation. This gives both parties an opportunity to resolve the dispute without a hearing. Many flexible working disputes are resolved at this stage — particularly where the disagreement is more about process than the substantive decision. Engaging genuinely with conciliation is almost always the right approach.
• Acknowledge the request in writing and note the date received
• Arrange a consultation meeting within a reasonable time
• Consider whether any protected characteristics are engaged
• Assess the request against the statutory business grounds
• Explore whether a modified arrangement or trial period could work
• Issue a written decision within the two-month period
• If refusing, specify the statutory ground(s) and explain why they apply
• Notify the employee of any appeal right
• Document the process and outcome
If a request is refused, understand → employment tribunal risks
If linked to childcare or family rights →, see parental leave guidance
If policies need updating, → review your employment contracts