Under the new flexible working framework introduced by the Employment Rights Act 2025, an employer may only refuse a flexible working request if it is reasonable to do so. Following consultation, the government has now confirmed the new mandatory process employers must follow before refusing a request, which we discuss in more detail here. As expected, Acas has now published a draft Code of Practice for consultation setting out the new statutory process in practice and providing a first look at what the new reasonableness test will look like.
As a reminder, although breach of the Acas Code does not have a stand-alone remedy, it will be taken into account by employment tribunals in deciding these types of claims.
What will reasonableness look like?
Currently employers must handle flexible working requests in a reasonable manner, and any refusal needs to be based on one or more of the eight statutory business reasons. The Employment Rights Act 2025 goes further by requiring employers to show why it was reasonable to rely on that ground. As we have noted previously, the impact of these reforms on employers’ discretion to refuse requests largely depends on how reasonableness is defined and applied in practice. The draft Code sets out four principles to help employers show that refusals are reasonable:
- Evidence-based decisions. Employers should be able to explain what evidence they used and why it supported their refusal. Examples given include workforce data, comparable situations, speaking to managers, staff representatives and team members as well as using risk assessments to check assumptions.
- Adapting to enable a request. Employers should consider reasonable changes to prevent, manage or reduce the impact. This could include redistributing work, using technology to support alternative working arrangements, considering a different start date or an alternative arrangement, and checking whether costs are one-off or ongoing.
- Finding solutions together. Both parties should try to resolve problems before escalating matters, such as through trials or time-limited arrangements.
- Transparency and consistency. Employers should explain the practical impact of the requested arrangement and why it is significant enough to justify a refusal. Having a written flexible working policy and sharing information about the organisation’s operations and the possible impact of proposed arrangements are some examples of how employers can show they have acted transparently and consistently.
This new test is not a general standard of reasonableness and will require a tribunal to judge how reasonable a decision was in the context of the employer’s own business and operational needs. Helpfully, the draft Code itself recognises that how the above principles apply will depend on the employer’s size, resources and operational needs.
Many large employers will already follow a similar process, but the draft Code means there will need to be more substance and evidence behind the reason relied on. A refusal should be detailed enough for the employee to understand what the decision was based on.
Refusals based on blanket policies may also come under greater scrutiny, as employers will need to show, with evidence, why the impact of a particular arrangement was significant enough to justify a refusal.
What else is new?
Reasonable adjustments and flexible working requests
While the current Code briefly addresses the interplay between flexible working requests and the duty to make reasonable adjustments, the draft Code goes further with an entirely new section. Employers will be expected to consider, from the outset, whether a request relates to a disability and keep this under review throughout the process. Employers must also consider adjusting the process itself and the draft Code gives some basic examples of what adjustments might be reasonable such as changing how a meeting is held.
When consulting with the employee, the draft Code also encourages employers to “approach discussions in a way that allows employees to raise any relevant circumstances”, including whether the request relates to a disability or the need for a reasonable adjustment. Most employers will do this as a matter of course, but this is a timely reminder that often the biggest legal risk for employers in these scenarios remains the risk of discrimination claims.
Employers can expect further help on this point. In its recent consultation response, the government said it will develop guidance to improve awareness of the duty to make reasonable adjustments and to clarify how to handle flexible working requests that should instead be considered as requests for reasonable adjustments
Consulting with the employee
The core process for consulting with an employee before refusing a request remains largely unchanged, and much of the new detail reflects what the government has already confirmed. However, the draft Code is more prescriptive in a few places:
- The meeting invitation must be in writing and state the purpose, date and time of the meeting. It should not suggest that a decision has already been made.
- As well as giving fair and reasonable notice of the meeting, employers should take account of any urgency in the request, for example a change in caring responsibilities.
- The employer must explain any challenges by reference to the relevant business reasons and discuss whether they can be overcome.
- The person attending the meeting should be able to make a decision about the request “wherever possible”. The government dropped the proposal for a specific requirement for a decision-maker to attend after concerns from larger employers during consultation.
- Both parties may agree to extend the decision period to allow for a trial of the proposed arrangement with agreement in advance regarding the length of the trial and how it will be reviewed.
Multiple requests
A common concern for employers when considering requests is that agreeing a request may set a precedent for future requests or lead to multiple employees in the same team seeking similar arrangements. The draft Code contains a brand new section which accepts that employers may need to think about the combined effect of requests in a team or area but should still consider each case on its merits.
It suggests that employers could “discuss how existing arrangements are working when considering a new request” and “talk to other employees about voluntarily agreeing updates or changes to their flexible working arrangements” to allow another request to be approved. This explicit recognition that employers may explore adjustments to existing arrangements should give them confidence in using this approach to accommodate additional requests.
What’s next?
The draft Code is not the final word. The detail of the mandatory process employers must follow before refusing a request will be set out in regulations, and Acas will review the Code once these are finalised. Acas is also due to update the non-statutory guidance which sits alongside the Code, with both expected to take effect when the new regime comes into force in autumn 2027. Even so, the draft gives employers a good indication of where we are likely to end up.
As written about before, for many employers, the new process will feel familiar and will largely reflect what they already do. However, the combination of a mandatory meeting process and the new reasonableness test will add more scrutiny to the decision-making process, and poorly reasoned refusals will become much harder to defend.
With Acas’s new survey finding that nearly 8 in 10 employees say flexible working was important in a job, getting this right matters. It is probably too early to rewrite policies just yet, but training managers to evidence and document their reasons will certainly be valuable, particularly where rationales are based on return-to-office policies.
The consultation closes on 17 December 2026 and can be found here. We will be responding to this consultation, and we are keen to hear your views. If you would like to discuss how these proposals could impact your business, please get in touch with your usual contact.
