Libby Hubbard, professional support lawyer and senior associate in the employment & pensions team at Anthony Collins law firm, tells businesses what they need to know
Six years after the COVID-19 pandemic accelerated the shift to remote work, hybrid and flexible working arrangements have become an established part of the labour market, and a consistent topic for discussion about how to strike an appropriate balance to meet business need and employees’ changing expectations.
Flexible working is now more of an established part of life across the UK. It can take many forms, including changes to working hours, patterns and locations. For employees, flexibility can play an important role in helping people enter, stay in and progress in work. From employers' side, flexible working policies can support recruitment, retention and workforce participation.
Recognising the need to improve transparency and accountability, the UK Government has recently published its response to the consultation launched earlier this year on the Employment Rights Act 2025 reforms to the right to request flexible working.
For employers, the changes will bring greater scrutiny as to how flexible working requests are considered and refused. The question now is what this will mean for businesses in practice.
Through the ERA 2025, the Government committed to strengthening the flexible working framework and the Act includes a new requirement that employers must introduce a more structured consultation process around flexible working and only reject requests where it is reasonable to do so.
The eight existing statutory grounds for refusal remain the same, but the burden of proof is shifting. The grounds cover: the burden of additional costs, an inability to reorganise work amongst existing staff, an inability to recruit additional staff, a detrimental impact on quality, a detrimental impact on performance, a detrimental effect on ability to meet customer demand, insufficient work available for the periods the employee proposes to work, and planned structural changes to the employer’s business.
In workplaces there will be an introduction of a ‘reasonableness test’, putting the onus on employers to explain the grounds for refusing a request, with evidence as to why the refusal is reasonable. It should be noted that employees will be able to challenge that decision.
In addition, there will be a statutory process which employers must follow to comply with the requirement to consult with the employee before rejecting a request. If the employer intends to reject a flexible working request, they must hold a meeting with the employee and consider the feasibility of the requested arrangements, address the challenges and, where necessary, explore suitable alternative arrangements.
The overriding purpose of the meeting will be to reach an agreement with the employee and not just to pass on the message that their request has been declined. The meeting must be held within the two-month period for making the decision and the employee must be given reasonable notice of the meeting and be informed of its purpose.
After the meeting, employers will have to provide written notification of the outcome of the meeting and the outcome of the request.
This is an important step and one which the Government hopes will result in fewer requests being refused. This new process builds on recent changes to flexible working regulations, including the introduction of a day-one right to request flexible working in April 2024. Regulations implementing the process will take effect in autumn 2027 and the reasonableness test will be introduced at the same time.
These reforms are likely to raise the legal bar when refusing requests, as managers will need to be able to demonstrate that they have: properly assessed the request, identified specific operational concerns, considered potential mitigations, explored alternative arrangements, and communicated their reasoning clearly
Whilst the remedy for noncompliance with the statutory scheme at tribunal is not being changed (an order for employer to reconsider the request and/or compensation of up to eight weeks' pay), tribunals will delve more deeply into the reasonableness of any rejection and hence the chance of a discrimination issue being identified is higher. The greater risk may be losing valuable employees to employers more willing to accommodate flexible working.
Flexible working requests are often closely linked to caring commitments, disability and other protected characteristics. As a result, employers will also need to consider their obligations under the Equality Act 2010.
These changes do not take effect until autumn 2027, so there are no immediate operational steps that need to be taken but workforce strategy will need to consider what changes these extended rights may have. Many employers will already be abiding by good practice, which involves meeting with employees, discussing concerns, considering alternatives and documenting decisions around flexible work.
However, employers should track for draft statutory guidance being published on the reasonableness test; this will be key and will give an indication of how decisions should be made and what training and information to provide to the relevant decision makers.
In the meantime, an audit of recent applications, percentage rejections and reasons may offer an overview of current practices and give an indication of where work may need to be done.
Going forward, teams should keep clear records of why requests are approved or denied. Forward thinking teams may take this opportunity to review working policies and their stance of the future more generally, as this reform is the latest signal of a clear direction of travel towards greater flexibility in the workplace.
These reforms do not create an automatic right to work flexibly, and they do not prevent employers from refusing requests that genuinely do not work for their business.
However, employers are likely to need a more structured and consistent approach to handling requests, supported by clear records. Right now, for businesses, the priority should be reviewing current policies and decision-making processes and considering whether their approach to flexibility remains fit for the workforce they want to attract and retain.
