From 6 April 2024, the Employment Relations (Flexible Working) Act 2023 transformed the landscape of flexible work rights in England and Wales. The most significant change is that all employees now have the right to request flexible working from their first day in a job—removing the previous 26-week qualifying period. This means small and medium-sized employers must be ready to handle requests from day one.
What changed and when
The Act introduced three major changes to flexible working law. First, employees can now submit requests from day one of employment, whereas previously they could only make a request after 26 weeks’ service. Second, employees may make up to two statutory requests in any 12-month period, rather than one. Third, employers have two months (not three) to decide and communicate their decision, including any appeals.
These changes came into force on 6 April 2024 and apply to all existing and new employees in England and Wales. Importantly, the core grounds for refusal and the requirement to consult remain the same—you must follow a fair process, regardless of the request.
You must consult before refusing
The legal requirement is clear: you cannot refuse a flexible working request without first consulting the employee. Unless you decide to accept their request in full, you must invite them to a consultation meeting to discuss it.
This meeting should happen as soon as reasonably practicable and should explore the impact of the request, any modifications to their proposal, and alternative flexible working arrangements that might suit both sides. Both you and the employee should have reasonable time to prepare, but you must complete all steps—including the consultation and your final decision—within the two-month period.
Failure to consult properly before refusing can leave you vulnerable to employment tribunal claims, even if you have legitimate business grounds for the refusal.
The eight business reasons for refusal
You can refuse a flexible working request only if one or more of these eight statutory reasons applies:
- The burden of additional costs
- An inability to reorganise work amongst existing staff
- An inability to recruit additional staff
- A detrimental impact on quality
- A detrimental impact on performance
- A detrimental effect on your ability to meet customer demand
- Insufficient work available for the periods the employee proposes to work
- Planned structural changes to your business (such as reorganisation or closure of a department)
Simply preferring to have employees work set hours or in the office is not a valid reason. You must identify a genuine business impact. For example, “quality would suffer” is not enough; you need to explain how and why.
From 2027 onwards, if you decide to refuse a request after consulting the employee, you must give them a written explanation of why your decision is reasonable, specifically referencing one or more of the eight grounds and setting out the basis of your reasoning.
The two-month decision window
The statutory period runs from the day you receive the request. Within this two-month window, you must:
- Invite the employee to a consultation meeting
- Discuss the request and explore alternatives
- Make your decision
- Communicate your decision in writing to the employee
- Handle any appeal if the employee disagrees
If the employee appeals (if you’ve refused), the appeal must also be concluded within the original two-month period. You and the employee can agree in writing to extend the deadline if necessary, but extensions should be kept to a minimum and agreed by both parties.
How to structure your response
When you receive a flexible working request, first clarify exactly what the employee is asking for in writing. Some employees may not be clear about the details. Set out a meeting date that gives you and the employee reasonable time to prepare—aiming for within four weeks of the request is typical.
At the meeting, discuss the request openly. Explain any concerns from a business perspective. Explore whether the requested arrangement could work, and whether any modifications might be acceptable. For example, if an employee requests a full four-day week but you think three days with flexible timing might work, discuss that option.
After the meeting, consider their feedback and your business needs. If you can accommodate the request, confirm this in writing. If you cannot, write to explain which of the eight grounds applies and why. Mention that they can appeal within a set period (often 10 working days).
If the employee appeals, follow the same consultative approach—you must not dismiss their concern. Treat the appeal as a fresh discussion of the request and the grounds you relied on.
Common mistakes to avoid
Many employers assume that refusing a request is straightforward if they say “the office is mandatory” or “such arrangements have never been used before.” These are not valid reasons under the Act. You must articulate a specific business impact.
Another mistake is failing to explore alternatives. An employee might request three days at home; could they work three days on-site with flexible hours? Could they job-share? The consultation is not a box-ticking exercise—it should be genuine.
A third pitfall is rushing the decision before the two-month window ends. While you must decide within two months, taking the full two months to think carefully and document your reasoning is wise and will help you defend your decision if needed.
Finally, ensure you document the consultation meeting. Take notes on what was discussed, what alternatives were suggested, and why you eventually refused (or accepted) the request.
Where to get help
The Acas Code of Practice on requests for flexible working provides detailed guidance on handling requests fairly. Acas also offers free telephone advice and online resources to help employers understand their obligations. If you’re dealing with a complex situation—such as a request that affects multiple team members or raises operational questions—consider seeking advice before making your final decision.
Key points
- All employees have the right to request flexible working from day one of employment
- Employees can make up to two requests per 12-month period
- You must consult the employee before refusing a request, not after
- You have two months to decide and communicate your decision
- You can refuse only on one of eight specific statutory grounds, each requiring a genuine business impact
- From 2027, you must provide a written explanation of your decision referencing the grounds used
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