One of the key pledges underpinning its employment rights reforms was the government's commitment to make flexible working the “default from day one for all workers except where it is not reasonably feasible”. But with flexible working already a day one right, the changes introduced by the Act were fairly modest.

As we explored in more detail here, the key changes introduced by the Act are:

• The requirement that an employer may only refuse a request if it's reasonable to do so
• The requirement that employers state the ground for refusal and explain why they consider it reasonable to refuse the request on that ground
• the power to introduce regulations to set out the steps which an employer must take before refusing a request for flexible working.

Against this backdrop, on 5 February 2026 the government launched a consultation aimed at establishing what this new statutory process should be. The consultation, which is open until 30 April, also makes wide reaching inquiries to establish how employers are currently handling flexible working requests. The feedback is intended to inform future guidance on what constitutes a reasonable refusal which we consider further below.

What are the procedural requirements at the moment?

Many employers will already have established procedures for handling flexible working requests, often exceeding the statutory minimum. However, it’s useful to consider what the law currently requires. Employers must deal with a request “reasonably” and, since the reforms in April 2024, they must consult with an employee before refusing a statutory request. Part one of the consultation seeks views on the impact of those recent reforms, exploring whether employers have seen more flexible working requests and how they are now approaching them. 

Statutory requirements were also bolstered by the Acas Code of Practice on handling in a reasonable manner requests to work flexibly and also a more detailed non statutory guide. The Code sets out minimum standards of fairness that an employer should follow, and compliance with this can be taken into consideration by employment tribunals.  As we explained in our article here, the revised Code places greater emphasis on exploring alternatives during the consultation meeting and suggests that finding a viable solution should be more of a collaborative process. However, the Code stops short of setting out a specific process that employers must follow - a gap that the new regulations being consulted on are intended to address.

What’s the proposed process?

In terms of how the changes in the Employment Rights Act 2025 will operate in practice, part two of the consultation is of most interest.  This sets out the proposed process that employers will need to follow when handling all statutory flexible working requests. The idea is that this will ensure consistency and facilitate compromise where a request cannot be accommodated in full.

Under the procedure proposed by the government in the consultation employers will have to:

• meet with the employer if it is considering refusing a request, ideally within 6 weeks of the request, but no more than 2 months after;
• ensure that the meeting is attended by someone with sufficient authority;
• keep a record of the discussion and address the question of reasonable adjustments; and
• communicate the outcome in writing, including both a summary of the meeting and notification of the final decision as to approval, rejection nor an alternative arrangement. 

In terms of the substance of the discussion:

• the meeting must allow for sufficient discussion of the request and potential alternatives;
• challenges with the request will need to be addressed, explained and the decision will need to consider how to get around them; and 
• if the potential impact is unclear, a trial period should be considered, and if the request can’t be accommodated both the employer and employee will have to consider whether there are feasible alternative arrangements.

The consultation questions seek views on this proposed process and explore the impact employers think it will have on the time it takes to deal with requests. Issues explored include:

• what the appropriate notice period for a meeting is;
• what the parties should have to discuss; and
• whether the process will save time or be an additional burden. 

Will this make much difference?

For many employers, the proposed process will seem very familiar and hardly transformative. The underlying business reasons for rejection remain unchanged and broad. However, it does bake in an obligation to try to find a compromise, reflecting the underlying aim that the reforms will make it more likely that flexible working requests are agreed. Trying to find a compromise where a request can’t be agreed is already good practice, and something many employers would do as a matter of course. But a stricter requirement on this could prove empowering for employees. 

There has also been some criticism that the proposed process will be unnecessarily restrictive. For example, the requirement that the meeting is attended by someone with sufficient authority could be quite limiting in practice. An immediate manager may not always have the authority themselves to agree to a flexible working request, but under these rules would not be able to hold a discussion with the employee and then discuss the request afterwards with someone with the relevant authority. This may require employers to reconsider how they structure meetings to ensure compliance while maintaining practical flexibility.

It also remains the case that, regardless of tweaks to the process and procedure around flexible working requests, the biggest legal risk for employers in this scenario remains discrimination claims. Flexible working requests relating to caring responsibilities of course continue to carry indirect sex discrimination risks. Also, in many cases a flexible working request connected to an employee’s physical or mental health may also constitute a request to make reasonable adjustments. These need to be handled with care to avoid disability discrimination claims. 

Future Acas guidance 

This consultation is not the last word on this topic. Once the flexible working reforms are finalised, Acas will consider revising its Code of Practice on requests for flexible working to include specific guidance on the new reasonableness test.

The consultation emphasises that this reasonableness test will be different – it will have “a different statutory basis to other tests used in employment law”. Unlike other tests, this is not a general standard of reasonableness  - such as a range of reasonable responses applied in cases of unfair dismissal. Instead, it is measured against the eight business reasons for rejecting a flexible working request.

Presumably it will be for the tribunal to determine how these apply to the employer’s own business or operational needs. This is a different kind of analysis to that which tribunals are used to applying and begs the question of how well equipped they will be to assess how reasonable a business decision was.

There will be further public consultation on revisions to the Code, and the government has indicated that insights on current approaches to handling flexible working requests will help inform this future guidance. How the reasonableness test is applied in practice will be critical to the impact of these reforms and employers will therefore hope for clarity in future guidance. 

Training, resources and support

Finally, the third part of the consultation aims to understand what support employers and employees need in order to handle flexible working requests fairly and consistently under the new framework. The consultation probes what additional guidance is considered useful and what barriers need to be overcome. 

Will return to office mandates survive?

At the moment, for many employers flexible working requests are synonymous with return to office mandates. Will the proposals set out in the consultation make handling the influx of requests often received in this context even more of a challenge? From a process perspective, the impact is likely to be limited. Although perhaps more rigid, the process proposed in the consultation is not significantly different from that many large employers already follow and often set out in their own flexible working policies. What will make more of a difference in practice will be how the question of reasonableness is defined. As we have explained, the grounds on which a request can be refused remain broad. However, both future guidance and also how this test interpreted by tribunals in practice will determine how much the question of reasonableness fetters employers’ discretion and makes it harder to lay down blanket policies on working practices. 

Next steps

The consultation remains open until 30 April. Although its procedural focus may not herald radical change, few topics matter more to both employees and employers than flexible working. Flexibility remains key to attracting and retaining staff, yet many employers are navigating waves of statutory requests as hybrid working requirements recalibrate. Whether the government’s aim of shifting the balance towards agreeing requests will be achieved remains to be seen. However, this consultation may be a timely reminder for employers to review their current processes and consider how they will align with a stricter statutory process.

See the consultation here Make Work Pay: consultation on improving access to flexible working