United Kingdom: Upcoming Changes to Flexible Working Requests

In brief

The Government has published its response to its consultation on improving access to flexible working, confirming two key changes which will affect employers across all sectors. From autumn 2027, employers will need to follow a more prescriptive mandatory consultation process with employees before rejecting any flexible working requests. Any rejection will also be subject to a new reasonableness test, whereby employers will only be able to reject requests on statutory grounds, where it is reasonable to do so.

Secondary legislation will be published outlining the core elements of a fair and reasonable process for assessing and addressing requests for flexible working arrangements. To assist employers and employees with complying with the new regulations Acas published a draft Code of Practice on requests for flexible working on 1 October which is open for consultation until 17 December 2026.

Recommended actions

Legislative changes are anticipated to take effect in autumn 2027, meaning that employers have a year to review and update their policies and practices related to flexible working requests.

• Now:
  • Review your current process for assessing flexible working requests and assess where changes need to be made ahead of the legislative changes coming into force and whether additional training is required.
  • Read the Acas draft Code of Practice on requests for flexible working to inform preparatory steps for compliance with new legislation.
• Ongoing: Monitor updates from both Acas and the Government. The Government will publish secondary legislation setting out the process for consulting with employees and bringing the reasonableness test into force. Following the consultation period, Acas will update the draft Code of Practice to assist both employers and employees with compliance.

In more detail

Background

Employees already have a statutory right to make a written request to change their working arrangements from day one of employment. Broadly, the requested change can relate to their hours of work or the times or location at which it is undertaken. The employer has a statutory duty to deal with the request in a reasonable manner, can only refuse the request for one or more of the eight statutory grounds set out in the Employment Rights Act 1996 and must consult the employee if they are considering rejecting a request.

The statutory grounds on which a request can be refused include the burden of additional costs, detrimental effect on ability to meet customer demand, detrimental impact on quality or performance and inability to reorganise work among existing staff. The employer has two months in which to make a decision regarding the request (although this can be extended by agreement) and the employee can make up to two requests in any 12-month period. The request for flexible working framework is supported by an Acas statutory code of practice which employment tribunals must take into account when it appears relevant.

Whilst changes in April 2024 made the landscape for flexible working requests more employee friendly, feedback in the Government consultation suggests that the legislation has not achieved its wider aim of lowering the bar to access flexible working arrangements. Although many employers reported increased volumes of flexible working requests, many employees remain hesitant in submitting flexible working requests due to concerns that their request will be rejected, or that their request will result in negative consequences on their career progression. The changes to be implemented in autumn 2027 therefore appear designed to introduce a more prescriptive process for considering flexible working requests, and reassure employees that their requests will be given due consideration, rather than fundamentally changing the approach that many employers already adopt when a request is made. The draft Acas Code of Practice is over twice the length of the current Code of Practice. 

In practice, discussions regarding flexible working often focus on the circumstances and reasons for the request as against the employer’s business rationale for the current working pattern. As many flexible working requests are influenced by childcare, religious observance or health, employers are mindful that refusing a request may have an adverse impact on protected groups. In our experience, flexible working requests are rarely rejected out of hand but sometimes the discussions can focus on alternatives to the pattern put forward by the employee rather than looking in detail at how the request can be accommodated in its original form. We have also seen examples of multiple requests being submitted by employees in the same team, particularly following changes in office working requirements. The Acas draft Code of Practice addresses multiple requests. However, it provides only that each request should be considered individually and that an employer might need to think about the combined effect of multiple requests. It also suggests employers may wish to discuss existing flexible working arrangements to see if employees may voluntarily agree to make changes to enable subsequent requests by other employees. We do not think this is likely to be practical in most cases and expect it to be challenging.

Overall, the new requirements may lead to a shift in emphasis and a more detailed process, perhaps resulting in greater collaboration between employer and employee at an earlier stage of the process.

What are the new requirements?

1. Reasonableness: Employers will have to explain why it is reasonable to refuse the request in accordance with one of the eight statutory grounds. Further statutory guidance will be provided by the Government to outline specific obligations under this test. The Acas draft Code of Practice includes 12 paragraphs on making a reasonable decision, framed around four key areas: (i) reaching decisions based on evidence, (ii) adapting to enable the request, (iii) finding a solution, and (iv) transparency and consistency. We find that employers will usually provide a reason for rejecting a request in practice, given the potential for discrimination complaints where requests are rejected, even if a statutory ground has been identified.
2. Consultation Process: The new statutory process will incorporate a consultation meeting which has the focus of looking at the request itself (rather than available alternatives) and which should be conducted with a view to reaching agreement:
   1. Before the Meeting: Under the new rules, the employer will need to explain the purpose of the meeting in writing and give fair and reasonable notice of the meeting. The draft Acas Code of Practice says only that the notice should “give both sides enough time to prepare for the discussion”, suggesting there will not be a specified minimum period of notice. Although the Government will not make attendance of a decision maker a mandatory requirement, the meeting has to be conducted with a view to reaching agreement so consideration will need to be given as to how that can be achieved. Employers may find it helpful to establish some general principles to be followed, which may need to be adapted for specific circumstances.
   2. At the Meeting: The consultation meeting will take place within the two-month period for making a decision. In the first instance, the meeting will focus on the original request itself. If challenges are identified, these should be raised with the employee and the employer and employee should discuss potential solutions. Where the original request cannot be accommodated, alternatives will be explored. The Acas draft Code of Practice says that the person attending for the employer should be able to discuss the request meaningfully and wherever possible be able to make a decision on the request. Some of the more prescriptive aspects of the consultation have not been taken forward:
      1. Employers will not have to enquire whether the purpose of the meeting is to facilitate reasonable adjustments for a disabled employee. Of course, if the employer knows that an employee is disabled and that the proposed working pattern would ameliorate any substantial disadvantage to their working arrangements, the duty will be engaged. 
      2. A discussion about a trial period will not be mandatory but guidance will raise awareness of this as an option. The Acas draft Code of Practice explains that the decision period may be extended to accommodate a trial, and that the length of the trial should be agreed in advance together with how it will be reviewed and what will happen when the trial ends.
      3. The statutory right to be accompanied will not apply, although this would be good practice as confirmed by the Acas draft Code of Practice.
   3. After the Meeting: Employers must communicate the outcome of the consultation meeting and any associated arrangements for the flexible working request in writing after the meeting. The Acas draft Code of Practice explains that the written summary should be sufficiently clear and must include: (i) the key points discussed at the meeting, (ii) any actions agreed by the employer or employee, and (iii) any next steps where a decision hasn’t yet been made. It also specifies that the summary should be provided ‘without unreasonable delay’. There will be no legal requirement to offer a right to appeal, however, employers may wish to offer an appeal in line with best practice guidance from Acas. The Acas draft Code of Practice simply states that allowing an appeal “can help employers both handle requests fairly and make a reasonable decision”. It also notes that the statutory two-month decision period should be taken into account when considering an appeal.

Practical steps

Autumn 2027 may seem like a way off, but employers who do not take proactive steps early to look at their policies and practices for dealing with flexible working requests may find that managers are not prepared for the shift in emphasis towards a more collaborative, employee-led approach. Consider reviewing policies and practices at an early stage and providing sufficient advance training to line managers and decision makers. Consider responding to the consultation on the Acas draft Code of Practice, and review the final version when it is published.

While breach of the statutory right to request flexible working gives rise to a complaint in the employment tribunal, the often bigger risk for employers in refusing requests is a potential discrimination claim where the requested change is to accommodate caring responsibilities, disability or religious reasons.

Though the changes are essentially procedural, where an employer fails to provide the required evidence to demonstrate the reasonableness of the refusal this will almost certainly be relevant to any discrimination claim.

For specific advice on how the new reasonableness and consultation requirements will impact your business, and to help navigate these upcoming changes, please get in touch with your usual Baker McKenzie contact.