Flexible Working

Policy

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 Employment Rights Bill 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 looks set to remain a maximum of 8 weeks’ pay (currently capped at £700 per week, increasing to £719 from 6 April 2025), together with an order for reconsideration.

It remains to be seen whether these proposed legislative amendments will greatly change the flexible working landscape for employers. However, the amendments would, at a minimum, increase the burden of justification on employers to consider and demonstrate the reasonableness of any refusal and may 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.

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Timing and developments

Included in the Employment Rights Bill.

Further consultation and regulations are required. In particular, the Government has committed to consulting on the detail of the provisions and regulations will be required to set out the steps an employer must take to comply with the obligation to consult on an application.

This right is referred to as an ‘immediate’ change in the Next Steps document, perhaps indicating that this is expected to be earlier in the Government’s implementation timeline than most reforms in the Employment Rights Bill, which are anticipated for no earlier than 2026. However, given that consultation has been promised and regulations are required, implementation earlier than 2026 may be ambitious. In any event, firm details on timing have not yet been provided.