By Jo Seery, Professional Support Lawyer
Currently, employees have a day-one right to request flexible working. However, an employer can refuse the request, provided it has consulted with the employee and identified one of the following eight business reasons:
- The burden of additional costs
- Detrimental effect on the ability to meet customer demands
- Inability to organise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- Planned structural changes
The employer must notify the employee of its decision within two months of the request. Given the wide scope for refusing a request, it is not surprising that the most common reason cited by employees for not making a request is a belief that it will be refused.
The Employment Rights Act 2025 (‘ERA’) will strengthen the duty on employers by requiring them to explain why their refusal is reasonable. The employer must notify the employee which business ground it relies on and explain why it is reasonable to refuse the flexible working request on that ground. It will no longer be enough simply to cite one of the eight business reasons.
The ERA provides for regulations to be made setting out the steps employers must comply with when refusing a request. Following a consultation on its proposals for those steps, the government has now published its response.
The Government acknowledges the important role flexible working plays in supporting employees to remain in employment by making it easier to balance work with caring responsibilities, health conditions and other personal circumstances. Given its finding that employees are reluctant to make requests because they expect them to be refused, the Government is keen to improve confidence in the flexible working process. It therefore proposes to introduce regulations that will require employers to hold a meeting before rejecting a flexible working request, the purpose of which is to:
- Consider the feasibility of the requested flexible working arrangement and address challenges where possible; and
- If the requested arrangement is not feasible, explore any suitable alternative arrangements with a view to reaching an agreement with the employee.
The two-stage process means employers will need to act reasonably when responding to the original request before considering any concerns they have and how those concerns might be addressed.
The consultation proposed that advance notice be given of the meeting and that the person with authority to decide the outcome of the request be required to attend. Adopting a "light-touch" approach, the regulations will require employers to give "fair notice" of the meeting, but there will be no requirement for the person with authority to attend. Nevertheless, given that employers will be required to provide written confirmation of both the outcome of the meeting and their final decision within two months, they will need to obtain the appropriate authority fairly swiftly.
The consultation also included a proposal that employees clarify whether they would like the request to be considered as a reasonable adjustment under the Equality Act 2010. Responding to union concerns that this approach "risks conflating two separate areas of law" and could cause confusion about which rights the employee is relying on, the Government has dropped this proposal, choosing instead to develop guidance.
The Government also stopped short of giving employees a legal right to be accompanied at the meeting and a statutory right of appeal where a request is refused, despite both being recommended by ACAS. Instead, it prefers guidance, which can be applied immediately to encourage best practice. Guidance will also be provided to employers on what amounts to a reasonable refusal.
The Government will now draft regulations, and there will be a further consultation on an updated draft ACAS Code of Practice on flexible working. The changes are due to come into force in autumn 2027.