ERA reforms in depth: Flexible working

According to the government’s implementation roadmap, these flexible working reforms are expected to come into effect in 2027.

Current position

Already a ‘day one’ right, an employer must deal with a flexible working request in a reasonable manner, make its decision within a period of two months (unless an extension is agreed) and consult with the employee before refusing the request. The employer can refuse the request on one or more of eight statutory grounds and there is limited scope for tribunals to scrutinise the employer’s reasoning.

What is changing?

The Act sets out several changes to the existing right to make a flexible working request. We have outlined these changes below:

• Employers will only be able to refuse a request where it is ‘reasonable’ for it to do so on one or more statutory grounds. These grounds are the same as the existing eight statutory grounds.
• If an employer refuses the request, it will be required to state the grounds for refusal and explain why it considers that it is reasonable to refuse the request on those grounds.
• Regulations will be issued in due course which specify the steps that an employer must take to comply with its obligation to consult with the employee before rejecting a request. Interestingly, an obligation to consult was introduced into the flexible working request mechanism in April 2024 and the ACAS Code of Practice on requests for flexible working (which tribunals may take into account if a claim is brought) provides employers with guidance on what steps they should take to meet this obligation. It remains to be seen how the consultation steps that will be outlined in regulations will differ from the existing ACAS Code of Practice. We should know more on this front once consultation into the flexible working reforms is launched in early 2026.

It is worth noting that there are no proposals to change the maximum penalty that a tribunal can award where an employer fails to comply with its flexible working request obligations – it is capped at eight weeks’ pay (capped at £5,752 from 6 April 2025). That said, a claim under the flexible working regulations is often coupled with a discrimination claim where compensation is uncapped.

These reforms will provide employees with additional grounds for challenging the handling of their flexible working request. The current rules are largely procedural and provide limited scope for challenging the employer’s reasoning. In contrast, the changes in the Act will open up the substance of an employer’s decision to more scrutiny.

Whilst we will have to wait for some test cases to see how interventionist tribunals will be in their assessment of when it is reasonable for an employer to refuse a request, employers will want to review their processes for handling requests to reduce the risk of challenges from employees. This will likely include line manager training or awareness raising to ensure that they are aware of the need for any decision to refuse a request to be reasonable and for the organisation to clearly set out why it is turning down a request.

On a practical level, although the right to request is not being extended to a wider category of employees, we may well see an increase in the number of requests made after these changes are implemented as this has been an area of reform that has been the subject of quite a lot of press coverage. The increased number of requests could include more requests for homeworking, particularly where a business is taking steps to increase office attendance.