You may remember that one of the (many) areas where changes are going to be made by the Employment Rights Act 2025 (ERA 25) is flexible working. The government has new powers to set out a statutory process employers must follow before rejecting a request and has been consulting on how this should work in practice. They have now published their response to the consultation, so what does your business need to know?
- What are the changes to flexible working?
- What are the key points in the government response to the consultation?
- When are the changes happening?
What are the changes to flexible working?
In brief:
- A reasonableness test is going to be brought into force – an employer may only refuse a request if it considers that one or more of the acceptable statutory grounds for refusal apply and that it is reasonable to refuse the request on that ground. If a request is refused, the employer must state in writing the ground(s) for refusing and why they consider the refusal to be reasonable.
This approach will already be familiar to many businesses as not only is it good practice, but it can help to put the business in a more robust position in some situations, such as where there may be a risk of an indirect discrimination or constructive unfair dismissal claim where a request is being refused or the employee is likely to challenge the decision on appeal.
- Regulations to specify steps that the employer must take when they are consulting with an employee before rejecting an application for flexible working will also be introduced. It is this area that has been the focus of the government consultation.
What are the key points in the government response to the consultation?
In brief, in their response to the consultation:
The government has set out that employers must hold a meeting before rejecting a statutory flexible working request to, 1) Consider the feasibility of the requested arrangement and address challenges where possible and, 2) If the requested arrangement is not feasible, explore any suitable alternative arrangements. The employer must undertake the meeting with the view to reaching an agreement with the employee.
The government has said that the amount of notice that should be given for the meeting is best decided within the business, and so the requirement will be for employers to give “fair notice” before the meeting – there is no change to the requirement that the entire flexible working process must be completed within two months.
The proposed requirement that a decision-maker attend the meeting has been dropped (due to concerns about burden on some businesses), the “with a view to reaching an agreement” requirement is meant to guard against a cursory approach instead.
The proposed requirement to ask whether the request should be treated as a reasonable adjustment in the meeting has also been dropped, guidance will address this area instead.
The government set out that there would be no statutory right to appeal — this would remain recommended good practice under the ACAS Code rather than a legal requirement, trial periods and alternative start dates are encouraged but not mandated.
The government has said that the “reforms are intended to support more collaborative, transparent and constructive conversations about flexible working and to increase confidence that requests are being considered fairly and consistently.”
When are the changes happening?
The little bit of good news for businesses is that these changes are intended to take effect in autumn 2027, with an updated ACAS Code of Practice consulted on and brought in at the same time.
We will keep you up to date on developments, in the meantime if you would like a quick catch up on some of the other more imminent changes on their way under the ERA 25 or would like to find out more about flexible working now you can do in our earlier Legal Updates: