Flexible working reforms: Government plans confirmed

The Government has now published its response to the consultation on improving access to flexible working, providing much greater detail on how the new flexible working framework will operate in practice. 

Although the reforms stop short of creating a default right to work flexibly, they will require employers to adopt a more structured and evidence-based approach before rejecting a flexible working request. 

What's changing? 

Under the Employment Rights Act 2025 (ERA), employers may reject a flexible working request only where it is reasonable to do so on one of the eight statutory grounds for refusal.   This is a significant change from the current regime, which requires only that a refusal is based on one of those grounds.  In practice, unless a claim for breach of the current flexible working process is combined with a discrimination claim, the employer's justification for refusal is not very closely scrutinised.   The new reasonableness requirement will change that.  

The ERA also allows the Government to prescribe a specific process which employers must follow before refusing a request.   We now have much more detail about this process will look like.    The basic process will be set out in regulations and backed up with an updated ACAS Code of Practice. These changes will come into force in autumn 2027. 

In more detail…

If the employer is willing to grant the request with no modifications, there is no need to hold a meeting, but in any other cases the employer will need to hold a meeting with the employee.   The purpose of this meeting will be: 

• to consider the feasibility of the requested arrangement and address challenges where possible;
• if the requested arrangement is not feasible, to explore suitable alternative arrangements; and
• to undertake that discussion "with a view to reaching an agreement" with the employee.

The employer must give the employee “fair notice” of the meeting, although there is no specific notice period.   The meeting will need to take place within the 2 month period for responding to a flexible working request. 

There will be no requirement that a person with authority to make the decision must attend the consultation meeting, but it in practice it will need to be someone with enough knowledge to discuss the feasibility of the request (and we think it would be sensible for HR to attend this meeting where possible).  

The need to discuss the request “with a view to reaching agreement” is reasonable in theory, but we think it could be tricky to deal with in practice and is likely to be fertile ground for complaints.   The only reason a meeting will take place at all is if the employer thinks the original request cannot be accommodated, so employers will need to tread a very careful line to explain why they believe this, while also indicating that they remain open to granting it if possible.    

Employers will then need to set out the matters discussed at the meeting and the outcome of the flexible working request in writing.  However, there will be no legal requirement to allow the employee to appeal against the outcome (although the Code will highlight that this is best practice and we expect that many employers will retain this element of their current process).  

The Code of Practice will emphasise several further points for employers: 

•  employers should first properly consider whether the employee's original request can work before moving on to alternative arrangements; 
• employers should clearly explain any concerns with the request, identify the relevant statutory business grounds and consider whether those concerns can be resolved;
• employers should also explore potential alternatives if the original proposal cannot reasonably be accommodated;
• trial periods are encouraged as a way of testing feasibility (although these need to be carefully documented)

The Government considered whether employees should be asked whether a flexible working request was also a request for reasonable adjustments, but has decided against this approach on the basis that it would confuse two separate legal regimes.  

When? 

These changes are expected to take effect in autumn 2027. ACAS will produce an updated Code of Practice (which will also be consulted on) so that this can come into force alongside the legislative reforms.

What should employers be doing now?

Employers should start to review existing flexible working processes now.

In particular, employers should consider:

• what training managers will need to conduct meetings in line with the new requirements;
• what flexible working arrangements can and can't be accommodated and how the business can justify its stance with evidence;
• the approach to trial periods; 
• how evidence and decision-making will be documented; and
• what updates they will need to make to their policies and templates. 

Although the flexible working changes aren't as dramatic as other aspects of the ERA, and certainly fall short of making flexible working the default option, they will require some employers to adopt a different mindset and approach when dealing with requests.   Employers should ensure that they are fully prepared for the new landscape.