Rethinking flexibility: government consults on flexible working reform

This article was co-authored with solicitor, Eve Maxwell.

When the government launched its Next Steps to Make Work Pay in October 2024, it pledged to make “flexible working the default from day one for all workers, except where…not reasonably feasible”. The government recently published a further wave of consultations needed to implement aspects of the Employment Rights Act 2025, which included its Consultation on improving access to flexible working.

Employers should already be familiar with the current statutory framework for making flexible working requests and the good news is (not least with so much other change in the offing), that the basic framework for making flexible working requests will remain the same. 

All employees already have a day-one right to request flexible working. Such requests must be dealt with in a reasonable manner within two months of the request (unless an extension is agreed), and any refusal to grant a request must be based on one of eight statutory business grounds and following consultation with the employee. However, there is currently limited scope for tribunals to scrutinise the employer’s reasoning if a request is turned down and the employee brings a claim for procedural failings in how their request has been handled. 

The upcoming changes won’t represent an overhaul of the present system. Instead, they build on the existing statutory framework. Under the Employment Rights Act 2025 (the ‘Act’), the eight current statutory reasons for rejecting a request remain unchanged and consultation will continue to be required. However, the Act amends the existing statutory regime to provide that it must be reasonable for the employer to refuse the request based on the relevant statutory reason, so reasons for rejecting requests are likely to be subject to more scrutiny by a tribunal if a claim is made. There will also be additional procedural obligations which will be specified in secondary legislation.

The new “reasonableness test”

Central to the flexible working reforms in the Act is the introduction of a new “reasonableness” test, under which employers will be required to explain why it is reasonable to refuse the request on the relevant statutory ground.

The consultation is clear that employers will be expected to accept requests which are “reasonable and feasible” and employees will, therefore, be able to challenge any refusal not only on existing procedural grounds, but also on the basis the refusal was not reasonable. 

What counts as “reasonable” will inevitably vary between organisations and the nature of the employee’s role etc., and the consultation acknowledges that further guidance - potentially including revisions to the  ACAS Code of Practice on requests for flexible working (the ‘Code of Practice’) - will be needed to ensure that employers are equipped to meet their obligations under the “reasonableness test”.

Strengthening the consultation process

Consultation with the employee has been mandatory when rejecting flexible working requests since April 2024, but the proposals in the consultation paper on how consultation should be handled go a step further. If an employer is unable to “feasibly” accommodate a request in its original form, the process for what the employer is obliged to do next will be set out in secondary legislation and is likely to draw on elements of the existing Code of Practice. 

Key requirements proposed in the consultation may include:

•           A mandatory meeting: If the employer is considering rejecting the request, a decision‑maker with appropriate authority to make decisions about flexible working arrangements must meet with the employee within the two‑month decision period.

•           Record‑keeping: The decision‑maker must keep a record of the discussion and explain why the request could not be feasibly accommodated or was not reasonable.

•           Exploring alternatives: If the original request cannot be accommodated, the employer and employee must consider alternative arrangements.

•           Detailed written outcomes: Employers must confirm the outcome of the request and the meeting, including reasons for rejection and any alternatives explored.

For many employers, the proposals will look very much like the flexible working process they already have in place; consultation will continue to be required and, in reality, many employers do work collaboratively with their employees to consider alternative arrangements. What’s likely to change for some organisations is the expectation that they “think creatively” about where flexibility might be possible, as the consultation is clear that collaboration between employers and employees in considering alternative arrangements (and being able to evidence this) will be required before a request can be reasonably refused. 

An expectation to ‘think outside the box’

Obviously, not every role lends itself to every form of flexibility, but one of the learnings for employers following the COVID pandemic was that roles previously considered unsuitable for flexible working could be re-imagined where circumstances demanded it. Employers will be required to harness similar flexibility to properly explore options if not granting a request in full. 

Although it remains to be seen whether the new “reasonableness test” and requirement to think creatively achieves the government’s objective that flexible working should be the default, employers should prepare for increased scrutiny of the reasons for, and their reasonableness in rejecting, any requests. Whilst it’s currently unclear how interventionist tribunals will be in assessing the reasonableness of employers’ refusals, if an employer is going to refuse a request they should expect to be able to evidence their reasons in order to satisfy that reasonableness test. It is unlikely to be good enough simply to say, for example ‘Our customers like to deal with the same point of contact every time they call’ – a tribunal may expect to see evidence that would back this up. 

Employers will also need to be able to evidence that alternative options have been adequately explored. This will be important, as although the consultation does not indicate that the maximum compensation for failure to comply with flexible working request obligations – currently capped at 8 weeks’ pay – will be changing, other claims may be brought alongside. For example, flexible working requests are often made to allow an employee to fulfil caring responsibilities. If the request is unreasonably refused this may give rise to a sex and/ or age discrimination claim, where compensation is uncapped. Equally, flexible working arrangements may also be requested by disabled employees where refusing the request may constitute disability discrimination for failing to make reasonable adjustments – again compensation is not capped. 

Flexible working reform is expected to come into force in 2027. Further information about the reforms to flexible working under the Employment Rights Act 2025 can be found on our Employment Rights Act Hub.

The consultation is open until 30 April 2026 and invites responses from all interested parties.

If you have any questions about flexible working, or other reforms under the Employment Rights Act 2025, please get in touch with Katherine Flower, Eve Maxwell or your usual Burges Salmon contact. 

Flexible working can bring real benefits to both businesses and workers. Businesses report that flexible working helps them to attract more applicants, increase productivity, and improve employee motivation. Employees report that flexible working helps them to better balance their work and personal circumstances, improving their health and wellbeing, and making work more accessible to those facing barriers to employment.

https://www.gov.uk/government/consultations/make-work-pay-improving-access-to-flexible-working/make-work-pay-consultation-on-improving-access-to-flexible-working-web-version