Employment Rights Act Preparing for change: Response to consultation on improving access to flexible working

At a glance

• The government has confirmed that further reforms to the statutory flexible working regime will be implemented through the Employment Rights Act 2025 and supporting regulations, with effect from autumn 2027.
• Employers will be required to follow a prescribed process before rejecting a statutory flexible working request, including meeting with the employee to discuss the request and any possible alternatives.
• The reasonableness test introduced by the Employment Rights Act 2025 will be brought into force, meaning employers may only refuse a request where it is reasonable to do so.
• New regulations will require employers to provide written confirmation of the meeting outcome, any agreed next steps and the final decision on the request.
• Acas will consult on an updated Code of Practice to support the new framework, with the revised guidance expected to take effect alongside the legislative changes.

On 15 September the government published its response to consultation on improving access to flexible working. Having considered the consultation responses, the government will proceed with reforms through the Employment Rights Act 2025 (ERA). These 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. The government will:

• Introduce secondary legislation setting out a process that employers must follow before rejecting a statutory flexible working request.
• Bring the reasonableness test introduced through section 9 of the Employment Rights Act 2025 into force.

It is intended that both changes will take effect in autumn 2027.

Acas will soon publish a draft update to its Code of Practice on requests for flexible working for public consultation. This will set out new statutory guidance for employers and employees and will take effect at the same time as the legislative reforms.

In April 2024, the flexible working regime was made more employee-friendly, 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 and removing the requirement for employees to explain the effect their request would have on the business.

Despite this, the responses to consultation suggest that suggests that some individuals may be deterred from using the statutory process not only because they expect their request to be refused, but because they are concerned about the potential workplace implications of asking.

For employers, the main challenge reported when handling flexible working requests was concerns that approving one request may lead to a large number of similar requests from other employees.

New procedural requirements

The new procedural requirements to be set out in regulations are as follows:

Objective of the meeting

Employers must hold a meeting before rejecting a flexible working request to:

• consider the feasibility of the requested arrangement and address challenges where possible; and
• if the requested arrangement is not feasible, explore any suitable alternative arrangements.

The meeting should be undertaken by the employer with the view to reaching an agreement with the employee.  

Setting up the meeting

• The meeting must take place within the two-month period for making a decision.
• The employer must give the employee fair and reasonable notice before the meeting (but no time frame will be set).
• The employee must be informed about the purpose of the meeting in advance. 
• During the meeting
• The employer must clearly communicate any challenges they identify with the original request and consider potential solutions or mitigations with the employee.
• If the original request cannot be accommodated, the employer and employee must consider whether there are feasible alternative arrangement(s).

After the meeting

Employers will be required to provide written notification of both:

• The outcome of the meeting.
• A summary of conclusions or next steps agreed during the meeting, or confirmation if an arrangement has been agreed.
• The outcome of the request; the final decision made by the employer about the flexible working request, stating whether the request was approved, rejected, or if an alternative arrangement was formally agreed.

Non-statutory guidance on flexible working will continue to encourage employers to allow employees to be accompanied at flexible working meetings, but this will not be included in the regulations.

The measures represent a considerable dilution of the original stated intention to make flexible working the default but do potentially shift the dial slightly towards more constructive consideration of how to make flexibility work. The existing statutory grounds for removal will remain, although the employer may only refuse the request if it is reasonable to do so.