Employees still won't have the right to work flexibly, but employers are likely to face increased risks if they reject a staturory request. That's because as well as following a prescribed consultation process, you'll only be able to refuse a request where it is reasonable to do so.
For most employers, the proposals are unlikely to require a radical overhaul of existing processes. However, organisations that take a fairly cursory approach to flexible working requests may need to rethink how they handle them. The focus is shifting from whether an employer can identify a statutory ground for refusal to whether it can demonstrate that it considered the request properly and acted reasonably in rejecting it.
Background
The Employment Rights Act 2025 will impose a new “reasonableness test” employers have to meet if they reject a statutory flexible working request. It also gives the government the power to prescribe a process employers must follow before refusing a request.
The consultation focused on how that process should work in practice and the government has now set out the framework employers will need to follow which will be brought into force through secondary legislation.
What will employers have to do?
Currently the only legal requirement is for employers to deal with a statutory request in a “reasonable manner”. That includes consulting with the employee, but it doesn't have to be via a formal meeting (although most employers already do hold a meeting in line with the Acas Flexible Working Code of Practice).
The headline change is that employers must hold a meeting with the employee before rejecting a statutory flexible working request and go through a number of prescribed steps.
The purpose of that meeting is not simply to explain why the request is being refused. Instead, you will need to:
- consider whether you can accommodate the request
- discuss any challenges you envisage and whether those challenges can be overcome
- explore possible adjustments or solutions; and
- if you can't approve the original request, consider whether an alternative flexible working arrangement could work instead.
The government's response makes clear that your discussions must be conducted "with a view to reaching an agreement" with the employee. And, you must focus on their original request before moving on to possible alternatives.
That doesn't mean you have to agree to every request. The statutory business reasons for refusing requests remain. However, you have to demonstrate that they you've genuinely explored whether a workable solution can be found before deciding to reject it.
What will the process look like?
Employers will have to:
- hold the meeting with the employee within the existing two-month decision-making period
- give employees fair and reasonable notice of that meeting
- tell employees in advance about the purpose of the meeting
- discuss any obstacles to the request and possible solutions
- consider alternative arrangements where the original request can't be accommodated; and
- after the meeting provide written confirmation the outcome of the meeting, or confirmation of an agreed arrangement. You won't have to produce detailed minutes - just a summary of the conclusions reached or next steps that have been agreed.
What about the new reasonableness test?
The consultation didn't ask questions about what will amount to a "reasonable" refusals. That means one of the most important questions for employers remains unanswered.
The government has acknowledged that employers will need further support and has confirmed that Acas will publish guidance on the new reasonableness requirement. This will sit alongside an updated Acas Code of Practice on flexible working.
That guidance will be particularly important. Employers are likely to have to provide more evidence about why a particular arrangement would not work and demonstrate that they have genuinely considered alternatives before reaching a decision.
Trial periods could become more important
One interesting feature of the response is the government's emphasis on trial periods and temporary arrangements.
Although employers won't be legally required to offer them, the government considers trial periods, review periods and temporary arrangements to be an important way of helping employers and employees find workable solutions. It says future guidance will encourage greater use of these approaches.
The government has watered down some proposals
The consultation originally suggested that someone with authority to make the final decision on the request should attend the consultation meeting. Following concerns raised by employers the government has decided not to include that requirement in legislation. It accepted that decisions can involve several people and requiring senior decision-makers to attend every meeting would put a disproportionate burden on larger employers with complex decision making structures.
Similarly, the government has rejected calls for a statutory right to appeal a flexible working decision. Employers can still offer an appeal process if they wish, and Acas will continue to recommend this as good practice, but it won't become a legal requirement.
The government has also decided not to introduce a statutory right for employees to be accompanied at flexible working meetings, although guidance will continue to encourage employers to allow employees to bring a companion if they wish.
When will the changes take effect?
The government intends to introduce secondary legislation to bring the new consultation process into force in autumn 2027. The reasonableness test introduced under the ERA 2025 will also come into effect at the same time.
Acas will consult on a revised Code of Practice before then, with the updated Code expected to take effect alongside the legislative changes.
What should you do now?
There's no immediate need to change your policies. However, it is sensible to consider how your processes are working in practice and identify any issues that cause specific difficulties (such as how you are currently dealing with multiple requests for the same pattern of work).
The direction of travel is clear. The government wants flexible working discussions to become more collaborative, transparent and solutions-focused. You will still be able to refuse requests where you have a genuine business reason for doing so, but simply identifying a statutory ground for refusal is unlikely to be enough. You'll have to show that you've engaged meaningfully with the request, explored alternatives and reached a defensible decision.
That may already be business as usual for many employers. For others, autumn 2027 may require a significant shift in approach.
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