Flexible working

The Employment Rights Act 2025 will introduce stronger flexible working rules but no extra penalties.

Currently, employees can request changes to their working arrangements up to twice a year and employers must deal with such requests in a ‘reasonable manner’. A request can be refused for one or more of eight statutory reasons (e.g. extra costs, detrimental effect on customer demand) following consultation with the employee. See Flexible working: April 2024 changes.

The Act specifies that flexible working must be afforded to the employee unless:

the employer considers that the application should be refused on one of the statutory grounds, and
the employer’s refusal is reasonable

This will be a distinct change: the employer will have to be reasonable in its reliance on the statutory factors whereas currently the employer only has to deal with the request in a reasonable manner and base its refusal on one of the statutory grounds. Where the employee’s request is refused, the employer will have to notify the employee of the ground or grounds for the refusal and explain why it considers that its decision is reasonable. It will not be enough simply to refer to one of the permitted reasons for refusal.

There is no change to the existing penalty for breach which will remain at 8 weeks’ pay, currently capped at £719 per week.

The start date for these changes is 2027.

A consultation on the flexible working changes (which closes on 30 April 2026) focuses on two main areas: a new suggested consultation process that employers must follow when they are unable to accept a statutory flexible working request and a new ‘reasonableness’ test.

Process for consulting employees

Currently, there is no detailed legislative guidance on how a flexible working request consultation process should be conducted – ACAS suggests steps employers could choose to follow but this guidance is non-statutory.

The government’s consultation proposes the following process to be set out in secondary legislation such that employers will be legally required to follow it:

Where an employer is considering rejecting a flexible working request, it must first meet with the employee.
The meeting must be held ‘without unreasonable delay’ and within the existing two-month decision period, ideally within 6 weeks.
Employees must receive advance notice to prepare for the meeting.
A ‘decision-maker’ with the authority to approve flexible working arrangements must attend and keep a record of the discussion.
During the meeting, the decision-maker must clarify if the request is also a disability-related reasonable adjustment under the Equality Act 2010.
Any challenges to the employee’s request must be clearly communicated, alongside an explanation of why it is not feasible or reasonable, citing relevant business reasons.
Employers are expected actively to consider and discuss potential ways to navigate these challenges, such as alternative start dates or trial periods.
If the original request cannot be accommodated, employers and employees must explore feasible alternative arrangements.
Employers can only reject proposed alternatives if a relevant business reason applies, and the outcome of this discussion must be recorded and communicated.
Employers will be required to provide written notification of both the outcome of the meeting (including discussions, conclusions and next steps) and the final decision on the request.

Reasonableness test

A new ‘reasonableness’ test will require employers to accept statutory flexible working requests that are reasonable and feasible.

The test will have a different statutory basis to other tests used in employment law. Reasonableness will be considered against the eight business reasons for rejecting a flexible working request.

The consultation confirms that ACAS will consider revising its code of practice on requests for flexible working to include specific guidance on the new reasonableness test. In addition, statutory guidance will be produced to help employers meet their obligations under the new test.