The Government has now published its response to the consultation launched earlier this year on the Employment Rights Act 2025 (‘ERA 2025’) reforms to the right to request flexible working. Although further regulations are awaited, the detail of the changes is beginning to take shape.
Background
Flexible working has been the subject of employment law reform in recent years, including changes made in April 2024 (see our previous article here), which made the right to request flexible working a day one right for employees and introduced a requirement for employers to consult before refusing a request.
The ERA 2025 builds on that framework and introduces three key changes:
- “Reasonableness” requirement – An employer will only be able to reject a statutory flexible working request on one of the eight statutory business grounds where it is “reasonable” to do so
- Notification – If an employer refuses a request, the notification must state the ground(s) for refusing the application and explain why the employer considers that it is reasonable to refuse the application on that ground
- New statutory process – Secondary legislation will set out steps that an employer must take in order to comply with its obligation to consult an employee before rejecting a request
These reforms form part of the Government’s commitment to improving access to flexible working and encouraging more constructive discussion between employers and employees. Whilst not a complete rewrite of the laws, employers will be required to follow a more structured statutory process when dealing with requests.
Earlier this year, the Government launched a consultation focused on the proposed new mandatory consultation process for employers where they are considering rejecting a statutory flexible working request. The Government recently published its response to the consultation on 15 September 2026, which confirms its intention to proceed with the ERA 2025 reforms and provides further insight on what we can expect for the new consultation process.
Consultation Response – the New Statutory Process
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, 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:
- Consider the feasibility of the requested arrangement and address any challenges where possible; and
- 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 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 advance about the purpose of the meeting. Rather than prescribing a defined notice period, the consultation confirms that employers will need to give “fair and reasonable notice” of the meeting, with further guidance anticipated. The Government has also decided not to introduce a statutory requirement for a person with authority to make the final decision to attend the meeting, although notes this will often be appropriate in practice
- During the meeting – Employers 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 parties must consider whether there are feasible alternative arrangements. However, 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 during the meeting, on the basis that this could conflate two separate areas of law. Although, additional guidance will be developed to help employers understand reasonable adjustments in the context of flexible working requests
- After the meeting – Employers will be required to provide written notification of both the outcome of the meeting and the outcome of the request:
- 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. This is not a requirement to take detailed minutes, however;
- 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 Government has indicated that these notifications may be provided in a single communication.
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 Acas Code of Practice.
Impact for Employers
The Government acknowledges that not all forms of flexible working will be suitable in every role, workplace or sector, and that employers must be able to manage their businesses effectively. The reforms will not remove an employer’s ability to refuse a request where it is reasonable to do so and one or more of the statutory business reasons applies. Instead, they are intended to encourage better decision-making, greater transparency and more meaningful engagement before a request is refused.
However, in practice the changes are likely to increase the burden on employers when dealing with statutory flexible working requests. When it comes to decision making, employers will need to show not only that one of the statutory business reasons applies, but also that rejection was reasonable in the circumstances and that the required consultation process was followed. Decision-makers will therefore need to be able to identify and explain the business concerns, consider whether those concerns can be addressed and engage with any viable alternatives.
Employers should also be alert to the potential for increased challenge where requests are refused, as the introduction of a reasonableness test and a more prescriptive process may create more scope for employees to argue that a refusal was not properly considered. With no definition of what “reasonable” in this context means, how this operates in practice before the tribunals will be critical. Claims may be brought in the employment tribunal where an employer fails to “act in accordance with” the flexible working legislation, and employees may be awarded up to eight weeks’ pay (subject to the statutory cap on a week’s pay) as compensation if successful. Tribunals must also take the Acas Code into account when considering relevant claims.
Employers should use the period before implementation to review flexible working policies and processes and ensure managers understand the new requirements, and potential risk of other types of claims, such as discrimination claims, where requests are refused or processes are not followed.
Timings and Next Steps
The Government has stated that it intends to draft secondary legislation setting out the process for consulting employees about their request, and to bring the reasonableness test in the ERA 2025 into force. It is intended that these changes will take effect in autumn 2027, although no specific date is given.
Acas is expected to publish a draft update to its Code of Practice on flexible working for public consultation in due course. The updated Code is expected to provide statutory guidance for employers and employees on the requirement to consult where an employer is considering rejecting a request, as well as the new reasonableness test. It is expected to be laid before Parliament in early summer 2027 and to take effect at the same time as the legislative reforms.
The Government has also said it will consider what additional guidance and support may be needed.
For further information on the latest developments, see our Reform Hub. Please contact your usual Littler contact if you would like any support with preparing your business for the changes.
