Flexible Working: When Can Employers Lawfully Refuse?

The Employment Relations (Flexible Working) Act has fundamentally changed the landscape for flexible working requests in the UK. Employees now have a statutory right to make flexible working requests from their first day of employment, and employers must deal with requests within two months and consult with the employee before any refusal.

Early tribunal cases under the new regime suggest that employment judges are applying closer scrutiny to the reasons given by employers for refusing requests, particularly where the employer has not engaged meaningfully with the consultation requirement.

Priya Sharma, Barrister at Hawthorne Chambers, commented: "The expansion of flexible working rights has shifted the burden onto employers to demonstrate genuine business reasons for refusal. Generic assertions about team cohesion or management difficulty are unlikely to withstand scrutiny."

The eight statutory grounds for refusal remain unchanged, including the burden of additional costs, detrimental impact on quality or performance, and inability to reorganise work among existing staff. However, tribunals are increasingly expecting employers to provide specific evidence supporting their reliance on these grounds rather than relying on general managerial judgment.

HR practitioners are advising employers to document their decision-making process thoroughly, to consider trial periods before issuing outright refusals, and to ensure that flexible working policies are applied consistently across the organisation to avoid discrimination claims.