The UK government has launched a consultation seeking views on the statutory flexible working framework, a key area in the Employment Rights Act 2025 (the ERA).
Under the ERA, an employer may refuse a flexible working request on one or more of the same eight grounds as currently, but only if it is reasonable to do so on the relevant ground(s) – this new ‘reasonableness test’ will come into force in 2027. In addition, the employer will need to consult with the employee about the request and there will be a specific requirement to explain the rationale for a refusal and why that refusal is considered reasonable.
The eight permissible grounds for refusing a request (which include things like the burden of additional costs, an inability to reorganise work amongst existing staff, and a detrimental impact on quality or performance) remain unchanged, as does the penalty an employer will face if found by a tribunal to have breached the provisions (which is set at eight weeks’ pay, with a week’s pay being subject to the statutory cap).
This blog post summarises the government’s proposals and their impact on employers.
What is being proposed?
The consultation focuses on two main areas: the new process for consulting employees on flexible working requests and the new reasonableness test.
1. Process for consulting employees
Currently, there is no detailed legislative guidance on how a flexible working request consultation process should be conducted – Acas currently suggests steps employers could choose to follow but this guidance is non-statutory.
The government’s consultation proposes the following process to be set out in secondary legislation such that employers will be legally required to follow it.
- Where an employer is considering rejecting a flexible working request, it must first meet with the employee.
- The meeting must be held ‘without unreasonable delay’ and within the existing two-month decision period, ideally within six weeks.
- Employees must receive advance notice to prepare for the meeting.
- A ‘decision-maker’ with the authority to approve flexible working arrangements must attend and keep a record of the discussion.
- During the meeting, the decision-maker must clarify if the request is also a disability-related reasonable adjustment under the Equality Act 2010.
- Any challenges to the employee’s request must be clearly communicated, alongside an explanation of why it is not feasible or reasonable, citing relevant business reasons.
- Employers are expected to actively consider and discuss potential ways to navigate these challenges, such as alternative start dates or trial periods.
- If the original request cannot be accommodated, employers and employees must explore feasible alternative arrangements.
- Employers can only reject proposed alternatives if a relevant business reason applies, and the outcome of this discussion must be recorded and communicated.
- Employers will be required to provide written notification of both the outcome of the meeting (including discussions, conclusions and next steps) and the final decision on the request.
Interestingly, there is no mention in the consultation of any process for employees to appeal a decision, which is a step covered in the current Acas guidance.
If these proposals are implemented, employers should be prepared for a more structured and prescribed consultation process, moving beyond informal discussions.
2. Reasonableness test
The reasonableness test will require employers to accept statutory flexible working requests that are reasonable and feasible. If a request is rejected, the employer must provide an explanation for why the decision is reasonable, linking it to one or more of the eight statutory business reasons for refusal.
Whilst a relatively simple change, this is not insignificant. It will mean that employees can bring tribunal claims to challenge the reasonableness of their employers’ flexible working decisions, rather than simply for procedural breaches.
While it remains to be seen how ‘reasonableness’ will be determined by a tribunal, the consultation confirms that Acas will consider revising its Code of Practice on requests for flexible working to include specific guidance on the new reasonableness test. In addition, statutory guidance will be produced to help employers meet their obligations under the new test.
What does this mean for employers?
These proposed changes signal a continued shift towards making flexible working a more accessible and enforceable option. Employers should consider the following key takeaways.
- Proactive policy and training review – it will be essential to review and update existing flexible working policies and processes to align with the new statutory framework once it is finalised. While many employers already do this, the introduction of these provisions will be a reminder to have in place a prescribed consultation process and train line managers on how to conduct effective meetings and justify decisions.
- Increased pressure for accommodation and clear justification – the ERA reforms imply a greater expectation on employers to accommodate requests. Refusals will require robust, well-documented justifications grounded in the statutory business reasons, especially given the new reasonableness test.
- Heightened risk of tribunal claims – the introduction of the reasonableness test and a prescribed consultation process will create an additional avenue for employees to challenge rejections, increasing the risk of claims. It will continue to be possible for an employee to argue that they have been constructively unfairly dismissed in certain circumstances (for example, if an employer behaves so unreasonably in dealing with a flexible working request that they have damaged the relationship of trust and confidence with the employee, or if an employee argues that a certain working arrangement has become an implied term of their contract and that approach is subsequently changed). These claims are often accompanied by a claim for discrimination (for example indirect sex discrimination). ERA reforms relating to unfair dismissal will expose employers to even more risk in this regard, as the removal of the compensation cap for unfair dismissal will mean that an employee will no longer need to succeed in showing discrimination to access uncapped compensation.
The consultation closes on 30 April 2026 but an updated Code of Practice and new guidance is expected in due course. Ultimately, these proposals underscore the evolving nature of work and the government’s commitment to enhancing employee flexibility. Employers that proactively adapt their policies, train their managers, and embrace a culture of open dialogue will be best placed to navigate this changing legal landscape.
For more information on the ERA and its implications on employers, please see here.
