Flexible working rights are being discussed once again as the Government has launched a consultation, with changes expected to come into force in 2027.
The Government are intending to strengthen the right to request flexible working as part of the Employment Rights Act 2025.
The proposal includes a new reasonableness test that would raise the bar for refusing requests and increase the risk of employment tribunal claims.
Despite no changes being made yet, employers should be aware of what is being proposed, what this could mean for them and start planning for these changes.
What is the consultation about?
The Department for Business and Trade consultation proposes that employers should only refuse a statutory flexible working request if the refusal is reasonable.
Employers would be required to explain which business reason applies and why refusing the request is within reason.
The consultation is open until 30 April 2026 and the resulting changes are expected to provide employees with greater enforcement rights.
If a request is rejected and the employee believes this decision was unreasonable, they could bring a claim to an Employment Tribunal.
Tribunals would have the power to order employers to reconsider the request and award compensation of up to eight weeks’ pay.
What are the current flexible working rules?
Since April 2024, employees have had a day-one right to request flexible working.
Employers can refuse a request based on one or more of eight statutory business reasons, such as due to additional costs or impact on performance.
What would change for employers?
Under the Employment Rights Act 2025, employers would need to justify their decision and prove that refusing a request was reasonable, even if one of the business reasons applies.
The consultation is looking to create a more structured consultation process. It seeks to understand the impact of the reforms which came into force in April 2024, obtain views on the process for consulting employees on flexible working requests and understand the challenges faced by employers when handling flexible working requests and what information should be available in additional guidance.
It seems likely employers will be required to meet with the employee, explore alternative options and clearly document the reasoning behind any refusal.
This could increase the risk of tribunal claims for employers, particularly if decisions are poorly documented or if managers are inconsistent in how requests are handled.
What should employers be doing now?
Although many of the changes are not set in stone, employers must remain informed and know what to do if they are implemented.
If the consultation is approved, employers should:
- Review their flexible working policies and how decisions are made and reported.
- Train managers to understand the new reasonableness test, the consultation process and document decisions clearly.
- Prepare for conversations about alternative working patterns.
How can we support employers?
The new consultation may leave employers overwhelmed with the thought of additional legal responsibilities, alongside the upcoming Employment Rights Act.
However, with the right legal support, employers can review and update their policies and create compliant consultation processes if the proposal comes into effect.
Our expert team can support you in handling individual requests and reducing the risk of costly tribunal claims.
With the talk of change in the air, employers should be proactive to protect their legal position.
For further advice on your obligations for flexible working rights, contact our Employment Law team today.