Acas consults on new flexible working Code as ERA reforms take shape

By Jo Seery, Professional Support Lawyer

In our previous article we considered the government’s response to the consultation on improving access to flexible working, setting out the process an employer must follow before refusing a request for flexible working. ACAS is now consulting on an updated statutory Code of Practice which gives guidance on the requirement that an employer must act reasonably before refusing a request.  

To recap the ERA 2025 will make changes to the law on flexible working by introducing:

• a new reasonableness test for refusing flexible working requests. Employers will be required to identify which of the existing statutory business reasons it relies on and explain why it is reasonable to refuse the request for that business reason.
• mandatory consultation steps before a request can be refused.

The consultation runs until 17 December 2026 and is intended to ensure that employers reach fair and effective decisions, preventing disputes and supporting constructive conversations when the new flexible working rights come into force in autumn 2027.

The focus of the approach in regard to the duty to act reasonably proposed in the draft Code is to address concerns early, communicate those concerns clearly and find practical solutions wherever possible.

The draft Code sets out in paragraphs 49 to 59; four key principles employers must apply in order to reach a reasonable decision:

• take decisions based on evidence such as workforce data, comparable situations, speaking to managers and employee representatives as well as using risk assessments to check assumptions.
• adapt where possible to enable a request for example by adjusting work patterns, using technology to support different working arrangements, considering a different start date, modifying or alternative arrangements; take into account if costs are a one-off or ongoing.
• work together to find solutions by asking the employee what they are trying to achieve, agreeing a trial period before a final decision is made, or a time-limited arrangement; consulting with employees and their representatives to explore if work can be carried out in a different way, time or place.
• act transparently and consistently with employers explaining the impact they believe the request will have in practice and why it justifies the refusal.

These principles apply irrespective of the size or sector of the organisation. The Code also sets out a prescriptive consultation process which includes a written invitation to a meeting with fair and reasonable notice, as well as informing the employee before the meeting that they may ask to be accompanied. ACAS maintains enabling the employee to be accompanied by either an employee, trade union representative or official employed by a trade union is good practice.

The draft Code also includes guidance on handling requests involving reasonable adjustments, managing competing requests and reaching fair decisions across different workplace settings. Employment tribunals will be required to take the Code into account where relevant, reinforcing its importance in future disputes. If implemented as drafted, the new Code could play an important role in making flexible working requests more transparent, collaborative and accountable.