New process for managing flexible working requests - draft Code published

All employees have a day one right to request flexible working.  The Employment Rights Act 2025 (the Act) introduces changes to the way in which employers must handle flexible working requests.

Currently, an employer is able to refuse a flexible working request on one of eight statutory grounds.  Under the Act, the list of eight statutory grounds remains.  However, employers will be required to consult with an employee before refusing a request.  In addition, the Act introduces a new ‘reasonableness test’ into the process for considering flexible working requests.  Employers will have to show that it is reasonable for them to refuse the request, and explain why in the notification of the decision to the employee.

Flexible working – Government consultation

The Government published consultation in February 2026 on the new process being introduced under the Act.  Following the consultation period, the Government published its response in September 2026.  It confirmed that the new process for employers to follow when considering refusing a flexible working request will be set out in secondary legislation, with good practice measures contained in supporting guidance.

ACAS revised Code of Practice

There is currently an ACAS Code of Practice on requests for flexible working, which came into force in 2024.  ACAS has now published consultation on a draft revised statutory Code of Practice, reflecting the changes that are expected to come into force in autumn 2027.

Under the new provisions, unless the employer agrees the flexible working request in full, they must consult with the employee.  The draft Code sets out the steps that the employer must follow to consult.  These include that the employee must be invited to a meeting in writing.  The purpose of the meeting will be to consider the feasibility of the request and explore any suitable alternative arrangements if the requested arrangement is not feasible.  The employer and employee must have an opportunity to discuss any difficulties, explore possible solutions and discuss whether any modification or trial period could help reach agreement.  The meeting must be carried out with a view to reaching an agreement with the employee.  After the meeting, the employer must provide a written summary of the meeting, including the key points discussed and any actions agreed.

The employer will only be able to refuse a request if one of the eight business reasons apply, and it is reasonable to refuse it for that reason.  The draft Code sets out guidance aimed at helping employers reach reasonable decisions based on four principles:

• Reaching decisions based on evidence. This could include reviewing the workforce, service delivery, or customer data; speaking to managers and team members; or using risk assessments.
• Adapting where possible to enable a request. This could include using technology to support different working arrangements; or considering alternative arrangements.
• Working together to find solutions. This could include agreeing whether a trial period or time-limited arrangement could be appropriate; or exploring whether work can be carried out in a different way.
• Acting transparently and consistently. This could include explaining why any impact of the request is significant enough to justify refusing the request; and having a written flexible working policy.

Once the employer has made a decision, they must notify the employee in writing.  The two-month decision period (which includes any appeal process) remains in place.  If the request is refused, the outcome letter must state the business reasons relied on and why they apply; and explain why the employer considers it reasonable to refuse the request on those grounds.

The Code clarifies that there is no statutory right for an employee to be accompanied at a flexible working request meeting, but that allowing the right to be accompanied is good practice and can help show that the employer is handling the request transparently and consistently.

Comment

The consultation on the draft Code closes on 17 December 2026.  Employers, employees, trade union representatives and anyone with an interest in flexible working are encouraged to respond.  Responses will be considered before the draft Code is finalised and laid before Parliament.

The new ‘reasonableness test’ may make it more difficult for employers to refuse flexible working requests in future, and could potentially lead to more Employment Tribunal claims where requests are refused.  Breach of the Code will not in itself give rise to a claim.  However, Employment Tribunals must take the Code into account where it is relevant to a claim.  The penalty for failing to comply with the statutory procedure will remain an award of up to eight weeks’ pay.

The changes under the Act are due to come into force in autumn 2027, and it is anticipated that the revised Code will come into force at the same time.

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16 October 2026

2026 Scrase Law Ltd. This update is for general information only and is not advice. You are recommended to seek professional advice before taking any action on the basis of this update.