The Government’s stated policy is to make flexible working the default from day-one on the job, with employers required to accommodate this as far as is reasonable (or except where it is not reasonably feasible).
The current law (amended in 2024 – see our article here) gives employees the right to request flexible working rather than a right to have flexible working, and employers have broad business reasons for which they can refuse an individual’s request.
The ERA 2025 builds on the current legal framework, increasing the obligations on employers, and provides for the following:
- An employer may refuse a flexible working request only if:
- The employer considers that the application should be refused on one or more of the eight statutory grounds (which are set to remain the same as the current law); and
- It is reasonable for the employer to refuse the application on that ground (or grounds).
- An employer must explain in their notification of refusal why it considers it reasonable to refuse the application on the statutory ground or grounds (unless the provision of information would be contrary to the interests of national security).
- A new power for the Government to make regulations setting out what steps employers will have to take to comply with the requirement to consult with the employee about their flexible working application.
Despite these changes, the penalty for non-compliance is currently set to remain a maximum of 8 weeks’ pay (currently capped at £719 from 6 April 2025), together with an order for reconsideration.
A consultation was launched on 5 February 2026 seeking views on the proposed new consultation process for employers dealing with flexible working requests, including the following proposals:
- The employer should hold a meeting with the employee before a decision is agreed within six weeks of the request, giving the employee advanced notice. The person holding the meeting should have sufficient decision-making authority
- The decision maker must clearly communicate any challenges with the request, why it might not be feasible to accommodate or why it is not reasonable referring to the statutory grounds. This includes consideration of ways to navigate challenges and accommodate the request. If the original request cannot be feasibly accommodated, suitable alternatives must be considered. If the potential impacts are unclear, the parties could choose to trial the arrangement for a fixed period
- The decision maker must clarify if the employee wishes their request to be dealt with as a reasonable adjustment
- A written record must be taken of the meeting and provided to the employee in addition to providing a written outcome of both the meeting and of the request
It remains to be seen to what extent these steps will become part of the statutory process and whether these changes will greatly change the flexible working landscape for employers. However, at a minimum, the changes will likely increase the burden of justification on employers to consider and demonstrate the reasonableness of any refusal and are likely to add additional compliance steps for employers to demonstrate compliance with the duty to consult the employee about their application. These enhancements could lead to an increase in claims relating to the refusal of flexible working requests and may make the implementation of wholesale office mandates increasingly difficult at a time when more and more employers are pushing for in-person office attendance.
Timing and developments
Included in the ERA 2025.
A consultation on the steps an employer must take to comply with the obligation to consult was launched on 5 February 2026 and closes on 30 April 2026. The consultation indicates that statutory guidance will be produced to help employers regarding the new reasonableness test, and that ACAS will consider reviewing its Code of Practice on flexible working, which will also be subject to further public consultation.
The Government’s updated timeline indicates that measures in respect of flexible working will take effect in 2027, although a specific date is not provided.