Category Archives: Insight Article

Flexible working is now a central feature of the employment landscape. When managed well, it benefits both employers and employees, supporting operational efficiency, employee engagement and evolving workplace norms.  This guide explains the statutory process for flexible working requests, outlines employer obligations and shares best practices to help navigate requests effectively.  

What is a statutory flexible working request?

A statutory flexible working request is a formal application by an employee to change their contractual terms relating to when, where, or how much they work.  Common examples include adjusting working hours, or start/finish times, working remotely or adopting hybrid arrangements and job-sharing or compressed hours.  ACAS guidance explains that the aim is to balance business needs with employee circumstances.  

From 6 April 2024, all employees can make a statutory request from day one of their employment. There is no longer a required minimum period of service before they can make a request, and they can now make up to two such requests in any 12-month period. 

Dealing with a statutory request 

Employees wishing to make a statutory request should meet the requirements to ensure the request is valid and correctly processed. Employers must deal with statutory requests in a “reasonable manner” in accordance with the Employment Rights Act 1996 and the updated ACAS Code of Practice.

1. Review the request

Ensure the request has been validly made.  Acknowledge the request and assess the feasibility, ensuring a response within two months, unless an extension is agreed in writing.

2. Consultation and decision

If the employer intends to refuse the request, the law now requires them to consult with the employee first.  This discussion should explore alternatives and demonstrate fair consideration.  

The decision must be communicated clearly, and the acceptance or refusal must be confirmed in writing. If accepted, update the employment contract within 28 days.  If refused, it is vital to state the business reasons(s) and inform the employee of any appeal process.  

3. Permitted business reasons for refusal

An employer may only refuse a statutory request based on one or more of the eight permitted business grounds outlined in legislation and the ACAS Code. These include:

• The burden of additional costs;
• The inability to reorganise work amongst existing staff;
• The inability to recruit additional staff;
• A detrimental impact on quality or performance;
• A detrimental effect on the employer’s ability to meet customer demand;
• Insufficient work for the periods proposed;
• Planned structural changes to the business.

When refusing, the employer should clearly state the business reason(s) in writing and inform the employee of their right to appeal (if an internal appeal process exists). The employer must demonstrate that the request has been properly considered and so it is important to document the reasoning carefully.  Employment tribunals will consider whether the ACAS Code was followed. 

Informal (non-statutory) requests

Even if the employee is not eligible to make a statutory request (for example, because they are not classified as an “employee” under employment law), they can still request flexible working informally. In such cases, the employer is not strictly obliged to follow the statutory procedure or to give business-justified reasons, but good practice suggests that they should give proper consideration.

Rights and protections for employees

• Employees have the right from their first day of employment to make a statutory flexible working request. 
• An employer must not subject the employee to a detriment or dismiss them because they have made (or proposed to make) a statutory request. 
• Where a request relates to a disability or caring responsibility, this may trigger employer obligations under the Equality Act 2010. 

Why flexible working matters

Beyond compliance, flexible working offers strategic benefits to employers which will include improved recruitment and retention, enhanced employee engagement, greater inclusivity, and a better work-life balance for staff. 

For employees, having the opportunity to work flexibly can reduce commuting time, support caring responsibilities, improve well-being, and enable a better balance between work and other life commitments. The key is for the arrangement to be workable for both parties.

Practical tips for employers

• Ensure you have a clear and accessible flexible working policy and procedure, even though informal arrangements are allowed.
• Respond to statutory requests within two months or agree to any extension with the employee in writing.
• If you plan to refuse, conduct a consultation meeting with the employee before reaching a decision.
• If rejecting a request, clearly outline the business reason(s) in writing and inform the employee of any internal appeal process.
• Record the decision, update contracts if applicable, and communicate clearly whether an arrangement is accepted (in full or in part) or refused.
• Follow the ACAS Code of Practice in spirit – tribunals may consider whether the employer adhered to the Code.

Reaching the Right Balance

The statutory right to request flexible working is now more accessible than ever. Employees can make a request from day one, may submit up to two requests a year, but can only have one active request at a time. Employers must act reasonably and promptly, consult with the employee before refusing, and provide genuine business reasons if they reject the request. By approaching flexible working requests constructively and collaboratively, both employers and employees can reach agreements that promote productivity, flexibility, and well-being. For more detailed guidance, check out the ACAS Code of Practice on requests for flexible working and the official government guidance on requesting flexible working.

About the author

Karen Cole is a Partner and Head of the Employment team at RIAA Barker Gillette. She has a range of expertise based on her employment law, dispute resolution, and litigation background. Karen provides employment law advice to businesses and individuals, whether contentious or not. She is a member of the Employment Lawyers Association (ELA) and the Association of Regulatory and Disciplinary Lawyers (ARDL).

As Christmas and New Year approach, many employers will rely on additional seasonal staff for shops, warehouses, hospitality outlets and delivery services.  It is crucial, however, not to overlook legal obligations around minimum wage and holiday pay.

Those working ‘Christmas jobs’ – including part-time, temporary and zero-hours workers – are entitled to the same minimum hourly rates and holiday entitlements as other employees.  

Under the Working Time Regulations 1998 (as updated), almost all workers must receive 5.6 weeks’ paid holiday a year, even if they work only seasonally, part-time, or irregular hours.  Holiday pay for those with irregular hours or part-year contracts should now be calculated using the 12.07% accrual method or, if using rolled-up holiday pay (permitted since April 2024), clearly identified on the payslip.  

That is especially important at this time of year: the extra shifts, longer working hours, and deductions for uniform or unsocial-hours premiums increase the risk of inadvertently slipping below the minimum wage or underestimating holiday pay. 

Nearly 500 employers were recently fined more than £10 million for failing to pay the National Minimum Wage, and £6 million was put back into the pockets of workers following a crackdown as part of the Government’s Plan for Change, and an open hotline for reporting underpayments to HMRC.  These figures highlight the real risk, both financial and reputational, of non-compliance.   

Seasonal staff can be a real asset during the festive period, but only if employers get the fundamentals right.  This is the time to review pay, holiday entitlements and paperwork before the Christmas rush turns into a new year compliance crisis.

Checklist for employers 

• Review pay rates and contract terms to ensure they meet or exceed minimum wage requirements for all hours worked (including overtime, training, opening/closing time and unpaid work)
• Audit holiday entitlement and pay calculations for irregular-hours or part-year staff, ensuring holiday pay is not simply built into an hourly rate unless properly documented
• Ensure payslips clearly show holiday pay separately (especially if using rolled-up holiday pay)
• Ensure payroll software is up to date and applying the latest rates of tax and national insurance  
• Understand that failure to comply can trigger HMRC enforcement action, including penalty payments and the requirement to pay all arrears owed

National Living Wage and National Minimum wage rates 2025 

• National Living Wage (21 and over) – £12.21
• 18 to 20 – £10.00
• Under 18 – £7.55
• Apprentice – £7.55

Christmas may come but once a year, as the saying goes, and seasonal staff may be temporary, but statutory pay rules never take a holiday.  Employers must keep them, and compliance generally, firmly on the calendar all year round.

About the author

Karen Cole is a Partner and Head of the Employment team at RIAA Barker Gillette. She has a range of expertise based on her employment law, dispute resolution, and litigation background. Karen provides employment law advice to businesses and individuals, whether contentious or not. She is a member of the Employment Lawyers Association (ELA) and the Association of Regulatory and Disciplinary Lawyers (ARDL).

October is Menopause Awareness Month and is designed to raise awareness about menopause, the transition through it and the support options available for those affected by it.  

Whilst, currently, there are no menopause-specific employment laws, indirect protections do exist; the Employment Rights Bill is likely to offer more explicit recognition and obligations on employers in the not-too-distant future.  

Current legal framework

The relevant employment laws protecting those experiencing menopause focus on the Equality Act 2010 (depending on the circumstances, someone experiencing menopause may be able to bring discrimination claims related to age, disability or sex and Trans people with menopause symptoms may be able to bring discrimination claims based on gender reassignment) and the Employment Rights Act 1996 (largely where dismissals have arisen due to misconduct or poor performance and an employee cites menopause symptoms as having a significant impact on them).

There is also protection under the Health and Safety at Work Act 1974, which obliges employers to ensure the health, safety, and welfare of employees as far as reasonably practicable.  That includes assessing workplace risks to health and well-being (e.g. environmental factors such as heat, ventilation, humidity, stressors) that may exacerbate menopausal symptoms and taking steps to mitigate those risks.  

That framework, however, is not ideal.

Equality Act 2010

There is no express “menopause’ protected characteristic under the legislation, and there is no basis therefore for menopause discrimination.  

Menopausal-related claims, therefore, rely on fitting into another protected characteristic. 

• Sex (gender discrimination) — treating someone less favourably because they are female, or because of stereotyped assumptions about women.  
  
• Age discrimination — since menopause is commonly age-related (although not always), differential treatment tied to menopausal symptoms can sometimes be framed as age discrimination.  
  
• Disability discrimination — in cases where menopausal symptoms are sufficiently severe, long-term, and impactful, they may meet the threshold of a “disability.” If so, an employer has duties to make reasonable adjustments, and other protections under the Act (such as protection from discrimination arising from disability) may apply.  

The EHRC’s guidance states that symptoms which have “a long-term and substantial impact” on day-to-day activities may qualify as a disability. If menopausal symptoms are classified as a disability, employers must recognise:

• A duty of the employer to make reasonable adjustments to avoid placing the affected person at a substantial disadvantage.
   
• Protection from direct or indirect discrimination, harassment, and victimisation connected to those symptoms.  
  
• Potential claims for discrimination arising from disability  

Meeting the disability threshold, though, is often a high hurdle, particularly because many menopausal symptoms can be episodic, fluctuating, or variable in severity.

Harassment, indirect discrimination, victimisation

Even where a disability claim cannot be made, there may be claims under:

• Harassment: e.g. unwelcome comments or “banter” about hot flushes, memory slips, mood swings. If such behaviour is related to a protected characteristic (e.g. sex), it can be unlawful.  
  
• Indirect discrimination: a “neutral” workplace rule or policy may disproportionately disadvantage menopausal employees unless the employer can show it is a proportionate means of achieving a legitimate aim.  
  
• Victimisation: if someone is treated adversely for raising complaints or making disclosures about menopause-related treatment.  

Proposals for reform: the Employment Rights Bill – what’s changing

A major change in the employment law landscape is underway thanks to the Employment Rights Bill.  It is currently in its final stages through Parliament; the House of Lords due to sit on 28 October 2025 to consider the Commons’ amendments and/or reasons. The Bill includes proposals directly relevant to menopause and gender equality in the workplace.

The key proposals include:

• Equality Action Plans for large employers (250+ employees): Employers will be required to publish an “equality action plan” that covers at least two prescribed matters: (i) addressing the gender pay gap, and (ii) supporting employees going through menopause.  
  
• Menopause Action Plans: As part of those equality action plans, large employers must set out measures to support employees through menopause.  
  
• Implementation timeline:
  
  • Voluntary adoption begins from April 2026.  
  • Mandatory compliance for large employers comes in 2027.  

• Other supportive changes: the Bill includes provisions for improving sick pay (e.g. removing waiting days), extending protections, enhanced trade union rights, and more robust harassment prevention regimes.  

Legal significance and risks

• The fact that menopause is explicitly named in proposed employment legislation is a landmark shift: it moves menopause out of the realm of implicit interpretation into the foreground of equality duties.  
  
• Once the regulations are in force, failure by large employers to comply could expose them to enforcement actions or legal challenge.
  
• Employers will need to begin preparing data collection, policy drafting, and internal systems well before 2027.
  
• The detailed content, format, frequency, and enforcement mechanisms of the action plans will be fleshed out by regulations (which will be subject to consultation).  

Relation to existing rights

• The new statutory duty (to publish action plans covering menopause) complements rather than replaces existing rights under the Equality Act or health and safety law.
  
• If a large employer publishes an action plan but fails to deliver the promised measures, that may increase exposure to claims or reputational risk.

Challenges & gaps

Even with the upcoming reforms, there remain unresolved challenges.

• High Bar for Disability Claims

Proving that menopausal symptoms qualify as a “disability” (i.e. long-term, substantial adverse effect) is difficult. Many cases will not meet this threshold, especially where symptoms are intermittent or manageable.

Tribunal decisions have recognised mental health effects tied to menopause (e.g. anxiety, depression, stress) in some cases, but outcomes are fact-specific. 

Some Tribunal decisions have rejected the idea that menopause, in itself, is an “impairment,” while leaving open the possibility that related symptoms may count. 

• Legal Uncertainty & Risk

Because menopause is not yet a clearly defined legal concept in discrimination law, cases may have high uncertainty, and outcomes can depend heavily on facts (severity, documentation, timing). This unpredictability may deter claimants or conservative employer approaches.

• Lack of “Menopause Leave” or Free Accommodations

There is currently no statutory “menopause leave” in England & Wales. Any paid time off or adjustments related to menopause must be negotiated or accommodated under broader sick leave or flexible working arrangements. 

Employers are not yet legally obliged to offer specific benefits (e.g. rest breaks, cooling areas, fatigue leave) unless tied to a disability duty or incorporated into an action plan.

• Stigma, Disclosure 

Many employees do not disclose menopause-related difficulties for fear of stigma, ageism, or being perceived as weak. This hinders early accommodations and weakens legal case preparation.

• Timing Mismatch & Phased Implementation

As the mandatory action plan requirement is not expected before 2027 (for large employers), there is a temporal gap where many employers will operate under the “old” regime, potentially delaying consistent protections.

Smaller employers (with fewer than 250 employees) will not initially be subject to the mandatory duty, creating uneven protection.

Enforcement, compliance incentives, and culture

Even when policies are in place, enforcement and compliance within organisations is uneven. Legal regimes alone may not change culture; training, monitoring, and accountability will be essential.

Regulatory bodies (like EHRC) will need adequate powers and resources to monitor compliance, issue guidance, conduct audits, and sanction non-compliance.

Practical implications and recommended next steps for employers

Below are recommendations for key stakeholders in the context of legal preparedness and best practice.

For Employers & HR Teams

1. Audit existing policies and practices
   
   • Review absence, flexible working, capability, grievance and health & safety policies through a menopause lens.
     
   • Identify gaps (e.g. no cooling facilities, rigid break regimes, lack of flexible working options).

2. Begin voluntary action planning now
   
   • Large employers may adopt Menopause Action Plans voluntarily to build culture, demonstrate good faith, and reduce later compliance burdens.
     
   • Create metrics, baseline data (e.g. menopause-related absence, staff feedback), and proposed interventions (e.g. training, environmental adjustments, peer support).

3. Train managers and line supervisors
   
   • Provide awareness training (symptoms, communication, adjustments).
     
   • Encourage empathetic conversations, early disclosure, and flexibility.

4. Implement reasonable adjustments proactively
   
   • Where employees disclose symptomatic difficulties, assess possible adjustments (e.g. temperature control, rest breaks, flexible hours, hybrid working).
     
   • Document the process to show reasonableness and good faith.

5. Integrate with equality and health & safety strategy
   
   • Align menopause accommodations with broader equality, diversity & inclusion (EDI) and occupational health strategies.
     
   • Include menopause considerations in risk assessments (e.g. heat stress, workload, shift patterns).

6. Record, monitor, and review
   
   • Maintain anonymised records (with consent) of menopause-related issues (absences, adjustments made, complaints) to monitor trends and refine policy.
     
   • Use staff surveys or feedback to assess how well measures are working.

7. Prepare for the impending statutory duty
   
   • Begin the infrastructure for data gathering, plan drafting, and compliance workflows so that when 2027 arrives, the transition is smoother.

Looking ahead

The legal protections for those experiencing menopause are currently indirect, reliant on broader discrimination, contract, and health & safety laws. While these offer some recourse, a key barrier is the lack of explicit recognition of menopause itself as a workplace legal issue.

The Employment Rights Bill marks a potentially transformative shift by naming menopause in employment law and requiring large employers to publish action plans. If implemented effectively, this could raise the baseline of support, improve accountability, and reduce legal uncertainty.

However, significant challenges remain: proving disability, securing cultural change, filling gaps for smaller employers, ensuring enforcement, and bridging the interim period until mandatory obligations take effect.

During Menopause Awareness Month, employers and employees can work together to increase awareness of symptom support and remove stigma in holding open and candid conversations.  

How RIAA Barker Gillette can help

Our Employment team advises businesses on all aspects of workplace compliance, from discrimination and policy drafting to training and dispute resolution.

If your organisation would like to review its policies or prepare for the Employment Rights Bill, please contact our Employment team to discuss how we can help.

About the author

Karen Cole is a Partner and Head of the Employment team at RIAA Barker Gillette. She has a range of expertise based on her employment law, dispute resolution, and litigation background. Karen provides employment law advice to businesses and individuals, whether contentious or not. She is a member of the Employment Lawyers Association (ELA) and the Association of Regulatory and Disciplinary Lawyers (ARDL).