UK government confirms tougher flexible working regime for employers

The reforms will also work to encourage more meaningful dialogue between employers and employees before requests are refused.

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Anne Sammon, employment law expert at Pinsent Masons, said: “While the reforms are not expected to take effect until next autumn, employers should use the period before implementation to review flexible working policies, refresh manager training and ensure decision makers are equipped to engage in meaningful consultation discussions.”

Flexible working became a ‘day one’ right, from the beginning of employment, in April 2024. Since then, employers have been required to handle requests reasonably, consult with employees before rejecting requests and rely on one of the statutory business grounds for refusal. However, the current framework does not prescribe what consultation must involve. The government concluded that this has led to inconsistent practices and, in some cases, requests being rejected without sufficient discussion of alternatives.

The consultation response (44 pages/633 KB PDF) highlights evidence that many employees continue to face barriers when seeking flexible working. While respondents frequently linked flexibility with improved wellbeing, the ability to manage caring responsibilities and remaining in employment, a significant number reported concerns about making requests.

According to the consultation findings, 63.3% of individual respondents believed a request was likely to be rejected, with 51.7% concerned that seeking flexibility could negatively affect their career progression. The government concluded that stronger safeguards are needed to ensure requests receive fair consideration and that employers genuinely explore alternatives before refusing them.

Under the new proposals, employers will need to follow a more structured process before rejecting a request. This will include holding a meeting with the employee and providing fair and reasonable notice of that meeting in advance. The employer must explain the purpose of the discussion, consider the feasibility of the requested arrangement, and explore whether any challenges can be addressed.

Where the requested arrangement cannot be accommodated, employers will be required to consider suitable alternatives. This could include discussing alternative working patterns, considering different implementation dates or exploring whether a trial period would enable the arrangement to work in practice. Importantly, the consultation response states that these discussions should be conducted with a view to reaching agreement rather than simply confirming a decision that has already been made.

The reforms will also introduce additional record-keeping requirements. Employers will need to communicate both the outcome of the meeting and the outcome of the request in writing. This is intended to reassure employees that their concerns have been considered and to provide greater transparency where a request is refused. The government has decided not to introduce a statutory right of appeal, although employers will remain free to offer an appeal process as part of their internal procedures.

Sammon said: “Many large employers may already operate processes that broadly reflect these requirements and should therefore find the changes relatively easy to absorb. Although the current statutory penalty for procedural failings is limited to eight weeks’ pay, employers often give flexible working requests greater scrutiny because mishandling them can expose the business to uncapped discrimination claims, particularly involving sex discrimination or disability-related reasonable adjustments.”

Another change introduced by the reforms is a requirement that employers may reject requests only where it is reasonable to do so. The government has provided very little detail on how this reasonableness test will operate in practice. While the existing statutory business reasons for refusing requests are expected to remain, tribunals will have greater scope to scrutinise the employer’s decision-making process and the justification for refusal. Detailed guidance from Acas is expected later this year.

In the consultation, 77.8% of employer respondents said they were worried that approving one request could lead to a wave of similar requests from colleagues. The consultation response does not explain how the new reasonableness test will apply in those circumstances.

Sammon said: “Many employers are less concerned about assessing an individual request than they are about the precedent it may set. Once a particular arrangement has been agreed, employers often worry that they will struggle to justify rejecting similar requests from colleagues, particularly where doing so might create an impression that other colleagues are being treated less favourably, giving rise to the risk of discrimination claims. Consistency will remain an important consideration, meaning employers will continue to need clear and objective reasons for treating requests differently.”