Consultations on implementation of the Employment Rights Act 2025: Flexible working, fire and rehire and tipping

At a glance

The government has published three further consultation papers on implementation of aspects of the ERA, covering flexible working, fire and rehire and tipping.

Flexible working

Currently, all employees have the right to make a flexible working request. Employers can refuse an application for any of these reasons:

• Extra costs that will damage the business.
• The work cannot be reorganised among other staff.
• People cannot be recruited to do the work.
• Flexible working will have a detrimental impact on quality.
• Flexible working will have a detrimental impact on performance.
• The business will not be able to meet customer demand.
•  A lack of work to do during the proposed working times.
• The business is planning changes to the workforce.

In April 2024, the following changes to the flexible working framework took effect:

• Allowing employees to make a flexible working request from the first day of a job.
• Requiring employers to decide on requests within two months.
• Requiring employers to consult employees if they are considering rejecting a request.
• Employees being able to make two statutory requests in any twelve-month period.
• Removing the requirement for employees to explain the effect their request would have on the business.

The ERA will introduce a reasonableness test; whilst the employer can still turn down the request on any of the eight grounds above, they will need to provide an explanation why their decision is reasonable. The consultation seeks evidence about current approaches to handling flexible working requests and the process which should apply for considering requests from 2027.

The consultation closes on 30 April 2026. Responses can be submitted online here.

Fire and rehire

The ERA will make fire and rehire an automatic unfair dismissal in relation to specified restricted variations to employment contracts. The scope of the restricted variations can be narrowed through regulations, and the government is seeking views on what changes to expenses, benefits in kind and shift patterns should be restricted variations.

The government has identified two options for excluding expenses and benefits in kind from the definition of sums payable:

• Option 1: All expenses and benefits or payments in kind are excluded from the restricted variation of sums payable to an employee in connection with the employment.
• Option 2: All expenses and benefits or payments in kind are excluded apart from certain types of: share schemes, travel expenses and accommodation.

The government has identified two options for the treatment of shift pattern changes:

• Option 1: Shift changes from day to night working (or vice versa), and weekday to weekend working (or vice versa), will be restricted variations.
• Option 2: No types of shift pattern changes are in scope of the restricted variation of the timing or duration of a shift.

The consultation closes on 1 April 2026. Responses can be submitted online here.

Tipping

The ERA will introduce a new requirement for employers to consult with workers at their place of business when developing or revising their tipping policies and a requirement for the written policy to be reviewed at least once every three years. The government is consulting on this, and on the statutory Code of Practice on the fair and transparent distribution of tips.

The consultation closes on 1 April 2026. Responses can be submitted online here.