Flexible working: new consultation process confirmed

The Government has published its response to the consultation on improving access to flexible working, confirming how the Employment Rights Act 2025 reforms will operate in practice. The reforms are intended to make it more likely that requests will be accepted while preserving employers’ ability to refuse requests that cannot reasonably be accommodated. The changes, which take effect from autumn 2027, will represent a significant shift in how some employers will need to approach flexible working requests.  

What has the Government decided?

The consultation focused on the process employers must follow before refusing a flexible working request. The Government has confirmed that it will introduce a new statutory consultation process alongside the new ‘reasonableness test’ introduced by the Employment Rights Act 2025.

Under the new regime, employers will be required to hold a meeting with an employee before rejecting a flexible working request. The purpose of that meeting will be to consider whether the requested arrangement can work, discuss any operational concerns, and explore alternative arrangements where the original request cannot be accommodated. The meeting must be conducted with a view to reaching an agreement.

The Government has also confirmed that employers will be required to provide written confirmation of the outcome of the discussion and their final decision.

Importantly, several proposals consulted upon will not be taken forward. There will be:

• no requirement for a designated decision-maker to attend the meeting
• no statutory right to be accompanied
• no statutory right of appeal
• no mandatory requirement to offer trial periods or review periods, although these will be encouraged through guidance and good practice.

When will the changes take effect?

The Government has confirmed that the new consultation requirements and the reasonableness test will be introduced from autumn 2027. Before then, Acas will publish an updated Code of Practice on flexible working and consult on revised guidance to support employers and employees. The revised Code is expected to be laid before Parliament during 2027 and will take effect alongside the legislative changes.

Why does the reasonableness test matter?

The most important aspect of the reforms is the introduction of a statutory requirement that employers act reasonably when refusing a request.

At present, employers can generally refuse a flexible working request if one of the statutory business reasons applies. These reasons remain unchanged, but from autumn 2027, employers will need to identify the specific business reason for refusal and demonstrate that refusing the request was reasonable in the particular circumstances.

This change will move the focus away from simply identifying a business ground to assessing the quality of the employer’s decision-making process. Employers will need to show that they genuinely considered the request, explored potential solutions and alternatives, and reached a reasoned conclusion based on the facts.

What will this mean for employers?

For many employers, particularly larger organisations with established HR processes, the practical changes may be less dramatic than they first appear. Good practice already involves meeting with employees, discussing concerns, considering alternatives and documenting decisions.

However, the reforms are likely to raise the legal and evidential bar when refusing requests.

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
• communicated their reasoning clearly.

The reforms may also increase the scope for challenge where an employer has followed the process superficially or relied on general assumptions rather than evidence.

Flexible working requests are often closely linked to childcare responsibilities, caring commitments, disability and other protected characteristics. As a result, employers will need to continue thinking carefully about the interaction between flexible working requests and their obligations under the Equality Act 2010.

The Birketts view

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. The enforcement mechanisms and compensation available to an employee whose request is refused will be unchanged. However, the Government wants employers to engage more constructively with flexible working requests and to move away from a culture in which requests can be rejected with limited discussion or explanation.

In practice, employers are likely to need a more structured and consistent approach to handling requests, supported by clear records and well-trained managers. Organisations that already adopt a collaborative approach are unlikely to need major changes to their existing procedures. Those that rely on informal processes may find that the new requirements expose them to greater legal risk, meaning that they should review flexible working policies and update manager training in advance of implementation.