When an employee submits a statutory flexible working request, employers are required to handle it in a reasonable manner.
The Acas Code of Practice makes clear that employers should not reject a request without first consulting the employee, and (unless the request is accepted in full) should arrange a consultation meeting to discuss it.
But what happens if an employee later tries to change or “amend” their request, either before or after that consultation meeting?
The Legislation
Under the Employment Rights Act 1996 and the Flexible Working Regulations, employees can make up to two statutory flexible working requests in any 12‑month period.
Each request is treated as a standalone application. Once an employee submits a statutory request, it will count as one of their two permitted applications, regardless of whether they later change their mind.
This means employers are legally entitled to:
- treat the original request as fixed, and
- make a decision based solely on that original request.
However, employers can have some discretion in practice.
Minor Amendments – Employer Discretion
If the employee’s proposed change is very minor, employers can choose (on a discretionary basis) to accept the amendment without requiring a withdrawal.
Whilst there is no legal obligation to allow such amendments, doing so is often good practice as it can support positive employee relations.
Employers should ensure that:
- any agreed amendment is confirmed in writing;
- the amended request is clearly identified as the version under consideration; and
- the decision period is still met (unless extended by agreement).
Substantive Changes – Withdrawal and Resubmission
If an employee wants to make a significant change (such as altering the working pattern requested, changing the number of days at home, or switching from compressed hours to part‑time work) employers are entitled to require the employee to withdraw the original request and submit a new one.
Please note:
- A new request will count as the employee’s second statutory request in the 12‑month period (unless they have already made two).
- A new request restarts the statutory two‑month decision period.
- Employers should confirm the withdrawal and resubmission process in writing.
- If an employee attempts to change their request after a decision has been issued, they must always submit a new request.
Key Tips for Employers
- It is important to document everything. Employers should keep written records of the original request, any proposed amendments, and any agreement to treat a request as amended.
- Employers must be consistent and apply the same approach to all employees to avoid allegations of unfairness or discrimination.
- Employers should follow the Acas Code – (i.e. a consultation is essential before rejecting any request).
- Employers should also be clear about potential consequences. Employees should understand that a new request counts toward their annual limit and restarts the decision period.
If you are an employer or employee affected by the above issue and want advice or support in connection with the same, or any employment law or HR issues more generally, please do not hesitate to contact us on 01206 239761.
