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Flexible Working Requests in Great Britain: The Statutory Right, the Two-Month Decision Period and the Eight Refusal Grounds

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Budget Legal Advice

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Every employee in Great Britain has a statutory right to ask for a change to their working pattern, but not a right to have the request granted. Part 8A of the Employment Rights Act 1996 sets out how a request is made and what an employer must do with it. GOV.UK notes that the rules are different in Northern Ireland, so this guide covers England, Wales and Scotland only and is general information, not advice on a particular request.

Who can ask and what can be requested

GOV.UK says all employees have the legal right to request flexible working and can do so from their first day in a job. A request can be for a change to the number of hours worked, when work starts or finishes, the days worked or where the work is done. Section 80F(1) of the 1996 Act lists the same subjects: hours, times and whether work is done at home or at a place of business of the employer. Section 80F(8) excludes agency workers, other than one returning from parental leave, from the definition of a qualifying employee. Employment status is explained in the guide to employee, worker or self-employed status.

What the written request must contain

Under section 80F(2) an application must state that it is a statutory application and specify the change applied for and the date on which it should take effect. GOV.UK says the email or letter must also include the date of the request and a statement saying if and when a previous application was made. Employers may ask employees to use a standard form, and Acas publishes a template. Under section 80F(4) an employee may not make more than two applications to the same employer in any 12-month period, and may not apply while another application is still proceeding, which includes any appeal.

What the employer must do

Section 80G(1) requires the employer to deal with the application in a reasonable manner, not to refuse it unless the employee has been consulted, and to notify the decision within the decision period. Under section 80G(1B) that period is two months from the date the application is made, or a longer period agreed by the employer and the employee.

GOV.UK gives examples of a reasonable manner: assessing the advantages and disadvantages of the request, discussing alternatives and offering an appeal process. It refers to the Acas code of practice on flexible working requests. If the request is agreed, GOV.UK says the employer should confirm the changes and a start date in writing and change the contract as soon as possible, and no later than 28 days after approval.

The eight grounds for refusal

An employer can refuse only on the grounds listed in section 80G(1)(b), and GOV.UK repeats them in plain words. They are:

  • extra costs that will damage the business;
  • the work cannot be reorganised among other staff;
  • people cannot be recruited to do the work;
  • flexible working will affect quality;
  • flexible working will affect performance;
  • the business will not be able to meet customer demand;
  • there is a lack of work to do during the proposed working times;
  • the business is planning changes to the workforce.

The employer must tell the employee that the request has been refused, and GOV.UK stresses that the request must have been discussed with the employee before a refusal.

Appeals

GOV.UK says employees no longer have a statutory right to appeal a refusal, although the employer may still offer an appeals process, and the employee should check whether one exists. The company’s own procedure should be followed, and the general route for a workplace dispute is described in the guide to grievance procedures at work.

Going to an employment tribunal

Section 80H allows a complaint to an employment tribunal in limited situations: the employer failed to follow section 80G, the refusal was based on incorrect facts, or the employer wrongly treated the application as withdrawn. GOV.UK adds that an employee cannot complain to a tribunal just because the request was refused, and that treating an employee poorly because of a request, such as refusing a promotion or pay rise, can also be a ground. The complaint must be presented within three months of the relevant date under section 80H(5), and GOV.UK gives the date of the decision, of the appeal outcome or of the missed response deadline. The way early conciliation interacts with this time limit is explained in the guide to Acas early conciliation and tribunal time limits.

Withdrawal of a request

GOV.UK says an application can be treated as withdrawn if the employee misses two meetings to discuss the request or an appeal without good reason, such as sickness. The employer must tell the employee that it is treating the request as withdrawn.

FAQs

Can my employer refuse without discussing it with me?

No. GOV.UK says the employer must discuss the request with the employee before refusing it, and section 80G(1)(aza) prohibits refusal unless the employee has been consulted.

How many requests can I make?

Two in any 12-month period, and not while another request is still proceeding, under section 80F(4).

Can I go to a tribunal if my request is simply turned down?

Not for the refusal alone. A tribunal complaint needs one of the grounds in section 80H, such as failure to handle the request reasonably or a refusal based on incorrect facts.

The bottom line

In Great Britain, employees can make up to two statutory flexible working requests a year from their first day in a job, and the employer must consult, decide within two months unless a longer time is agreed, and refuse only on one of the listed grounds. A refusal alone cannot be taken to a tribunal, but a failure to follow the process can, within three months. This is general information, not legal advice.

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