Flexible working: not a revolution, but the bar is rising

As we explored in more detail here, the key changes to the flexible working framework introduced by the Employment Rights Act 2025 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; and
• the power to introduce regulations to set out the steps which an employer must take before refusing a request for flexible working.

Earlier this year, the government consulted on what steps an employer must take before refusing a request for flexible working. After receiving 1,016 responses and holding stakeholder roundtables, the government has now published its response.

There will be a new mandatory statutory process that employers must follow if they are considering refusing a flexible working request and this will come into force in autumn 2027, alongside the new reasonableness test.  

What will the new process look like?

The final wording of the overarching objective for the consultation meeting for employers and employees to work towards is as follows:

Under the new statutory procedure, employers will have to:

• meet with the employee if it is considering refusing a request (which must take place within the two-month period for making a decision);
• give “fair and reasonable” notice in advance of the meeting;
• inform the employee about the purpose of the meeting in advance; and
• communicate the outcome of both the meeting and the final decision in writing, including a summary of the meeting (no requirement for detailed minutes).

What didn’t make it?

The consultation considered a number of different options for the new mandatory process, some of which may have caused a few headaches for employers. 

Perhaps the most controversial proposed requirement was for a decision maker to attend the meeting with the employee. Employers (and senior HR directors) will be pleased that the government listened to feedback that requiring an HR director or executive to attend every meeting would be a “disproportionate use of their limited time and capacity” and dropped this proposal. Instead, the refined meeting objective, requiring the meeting to be held "with a view to reaching an agreement", is intended to ensure meaningful engagement without imposing a rigid structural requirement.

Likewise, the proposed process required the employee to be asked whether they wished their flexible working request to be considered as a reasonable adjustment under the Equality Act 2010. The government have removed this proposal on the basis that it could conflate two separate areas of law. They will develop separate guidance on the interplay between flexible working requests and the duty to make reasonable adjustments.

The government also backed off from prescribing a specific notice period before the meeting took place. Whilst the consultation had floated one week, it will be left to employers to give “fair and reasonable notice”. This is a welcome degree of flexibility, although the lack of a specific period may lead to disputes about what is fair and reasonable in the circumstances.

Whilst there was also widespread support for requiring discussion in the meeting about the option of a trial period, the government confirmed that this would not become a legal requirement. Instead, awareness of the option of trial periods will be raised through guidance.

The consultation response also noted that there had been calls for a statutory right to be accompanied to the meeting by a trade union member or other companion. Whilst this remains good practice as set out in the Acas Code of Practice on requests for flexible working, the government felt that this should not be stipulated in regulations. Similarly, calls were also made to re-introduce a statutory right to appeal a flexible working decision but again, although the Acas Code of Practice recommends a right of appeal, the government felt this should not form part of a legal requirement.

What about the reasonableness test?

The reasonableness test did not form part of this consultation. We wrote before about the fact that the reasonableness test will have "a different statutory basis to other tests used in employment law" and questioned how well-equipped tribunals would be to assess how reasonable a business decision was. The consultation response does not provide definitive answers on this point, but Acas has committed to publishing detailed guidance on the reasonableness test later this year, and the updated Code of Practice will address it directly. How this test is interpreted in practice — both through guidance and, ultimately, by tribunals — will remain the critical question for employers.

Next steps

The consultation response confirms that Acas will be producing a draft update to its Code of Practice on requests for flexible working for public consultation, before the updated version comes into force to coincide with the new changes. The government has also promised to consider what other information and guidance may be needed.

With the reforms expected in autumn 2027, employers have a year to prepare, although awaiting the guidance would be sensible before taking any concrete steps. As we noted previously, for many employers the new process is not going to be transformative and will largely reflect what they are already doing. The consultation response confirms this with the CIPD noting that most HR representatives at its roundtables already used a similar approach, and several employers and industry bodies remarked that the confirmed process reflects existing good practice. Over 79% of employers responding to the consultation already use trial periods and temporary arrangements as part of their toolkit.

That said, the combination of a mandatory meeting process with the new reasonableness test does raise the bar. It will no longer be enough to simply identify a statutory business ground for refusal — employers will need to demonstrate that their reliance on that ground was reasonable, and that alternatives were genuinely explored. Poorly reasoned or unexplored rejections will become significantly harder to defend.