Flexible Working: Government Confirms Next Steps on Employment Rights Act 2025 Reforms

The Government’s consultation response emphasises that the ERA 2025 changes are intended to ensure that flexible working requests are considered fairly and transparently, and are accepted where it is reasonable to do so. The aim is to move the conversation away from simply identifying why a request cannot be accommodated and towards considering what may be possible in practice, including any possible alternative arrangements.

We set out below what this new process will look like as indicated by the Government’s consultation response and draft Acas Code of Practice, subject to regulations.

Purpose of the Consultation Meeting

Employers will be required to hold a consultation meeting with the employee before rejecting a flexible working request, the purpose of which will be to:

1. Consider the feasibility of the requested arrangement and address any challenges where possible; and
2. If the requested arrangement is not feasible, explore any suitable alternative arrangements

The meeting must be undertaken with a “view to reaching agreement” with the employee. The Government consultation response explains that this would not prevent an employer from rejecting a request where it is reasonable to do so and agreement cannot be reached, but it does set out that the purpose of the meeting is to explore whether a mutually acceptable outcome can be achieved. This might include agreeing the request as made, agreeing a modified arrangement or trialling an arrangement before making a longer-term decision. Where the original request cannot be accommodated, employers and employees may instead agree an alternative form of flexible working

Practicalities for the Meeting

Some changes have been made to the original proposals following consultation feedback (some 1,016 responses were received from a range of stakeholders). While regulations will contain the detail, the response indicates thatthe process will include:

• Setting up the meeting – The meeting must take place within the existing two-month period for making a decision and employers must tell the employee in writing in advance about the purpose of the meeting. Rather than prescribing a defined notice period, the employee should receive “fair and reasonable notice”. The draft Acas Code notes that notice should take account of any urgency or requested start date when arranging consultation and making a decision. It also notes that the meeting should be held privately in person, by video call or, where agreed, by telephone. Although the Government states in its response that it has decided not to require the final decision-maker to attend, the draft Acas Code says the attendee should be able to discuss the request meaningfully, consider the employee’s response, explore possible ways to reach agreement and, wherever possible, make a decision about the request

• During the meeting – Employers must clearly communicate any challenges they identify with the original request, including why they think it would not be feasible to accommodate, referring to the statutory business reasons. They should also consider potential solutions or mitigations with the employee. If the original request cannot be accommodated, the parties must consider whether there are feasible alternative arrangements. Unlike the original proposals, employers will not be required to ask whether the employee would like their request to be considered as a reasonable adjustment. However, the draft Acas Code notes that employers should consider whether a flexible working request relates to a disability and keep this under review while handling it. If the request does relate to a disability, the employer must consider making reasonable adjustments to remove or reduce the disadvantage related to someone’s disability and should discuss with the worker how the request will be handled. Employers must also consider any need to make reasonable adjustments to the flexible working request process itself.

• After the meeting – Employers will be required to provide written notification of both the outcome of the meeting and the outcome of the request:

1. The meeting outcome notification should include a summary of any conclusions or next steps agreed during the meeting, or confirmation where an arrangement has been agreed. Whilst the consultation response notes that this is not a requirement to take detailed minutes, the draft Acas Code states that the employer must provide the employee with a written summary of the meeting that includes the key points discussed and any actions agreed. If the employer has not reached a decision, the draft Acas Code notes that the written summary must explain the next steps, including when the employer expects to make its decision.
2. The flexible working request outcome should state the employer’s final decision on the request, namely whether it has been approved, rejected or whether an alternative arrangement has been formally agreed. The draft Acas Code notes that if the request is rejected, the final decision must state the statutory business reason(s) relied on, why they apply, why the employer considers it reasonable to refuse the request on that basis, and whether an alternative arrangement has been agreed.

The Government has indicated that these notifications may be provided in a single communication, although the draft Acas Code notes that the written summary of the meeting should be provided without unreasonable delay.

The process will not include a statutory right for an employee to appeal a flexible working decision or a statutory right to be accompanied at the meeting. However, offering an appeal and permitting a companion remain recommended as good practice under the revised draft Acas Code of Practice to “help employers both handle requests fairly and make a reasonable decision”.

Reaching a ‘Reasonable’ Decision’

The revised draft Acas Code of Practice includes a new section providing guidance for employers on the new ‘reasonableness’ requirement when refusing a request based on one or more of the eight statutory business reasons. It states that employers should reach reasonable decisions by applying four principles, set out in more detail below. The draft Code acknowledges that how these principles are put into practice may vary according to the employer’s size, resources and operational needs, however it sets out a number of examples of steps employers could take to act within them:

1. Reaching decisions based on evidence – this may include reviewing relevant workforce, service delivery, customer or other data, looking at comparable situations, speaking to managers, staff representatives and the team about how the arrangement could work and using risk assessments to check assumptions
2. Adapting to enable a request – this may include adjusting work distribution or patterns, using technology, considering modifications to the arrangement and examining whether costs are one-off or ongoing
3. Working together to find solutions – if the employer has concerns about the request, they should work with the employee, their manager and any representatives to find solutions. This may include asking the employee what they are trying to achieve, use of trial periods or time-limited arrangements and consulting with employees and their representatives to explore if work can be carried out in a different way, time or place
4. Acting transparently and consistently – employers should explain how any impact of the arrangement would arise in practice and why that impact is significant enough to justify refusing a request. Employers should also explain the process to the employee and how they will make their decision. Relevant steps of how employers can act transparently and consistently could include having a written flexible working policy covering how employees can make requests, how they are handled and how decisions are made, designing policies in consultation with employees, sharing information about the organisation’s operations and allowing reasonable requests to be accompanied at meetings