Flexible working position under the Employment Rights Act 2025
The Employment Rights Act 2025 introduces a revised framework for handling flexible working requests. The legislation moves the regime away from a purely request-based model and towards a more structured decision-making process.
Provision is made for employers to consult with employees before refusing a flexible working request and to explain why any refusal is reasonable in the circumstances. These principles are set out in primary legislation, but the detailed procedural mechanics have not yet been specified.
Commencement dates and supporting regulations remain outstanding.
Scope of the consultation
The consultation focuses on how the new statutory framework should be applied in practice. Views are being sought on the level of engagement expected before a request can be refused and how employers should demonstrate that refusal decisions are reasonable.
Consideration is also being given to how requests should be handled where immediate agreement is not possible. Options under discussion include staged consideration, temporary arrangements and trial periods.
The consultation does not revisit the underlying policy decision to retain an employer right to refuse flexible working requests.
Legal position during the consultation period
Publication of the consultation does not alter the current flexible working regime. No new statutory duties arise until the relevant provisions of the Employment Rights Act 2025 are commenced and supported by secondary legislation or guidance.
Employers remain subject to the existing statutory framework and associated ACAS guidance. Any suggestion that consultation obligations already apply would be incorrect.
Next steps
The consultation remains open until 30 April 2026. A Government response is expected to follow, setting out the final approach to consultation requirements and refusal processes.
Only after that stage will commencement dates, regulatory detail and enforcement expectations become clear. Until then, the consultation should be treated as a policy development to monitor rather than a change requiring operational implementation.
DMS Perspective
The Employment Rights Act 2025 places increasing weight on demonstrable process across employment decision-making and flexible working sits squarely within that framework.
The consultation points to tighter procedural scrutiny of flexible working decisions. Decision-making will attract closer examination where records show limited engagement, no meaningful consideration of alternatives or weak explanation of reasoning. Employers who rely on informal handling or formulaic refusals are unlikely to withstand challenge once the new regime takes effect.
No immediate policy changes are required. However, flexible working arrangements that depend on minimal documentation or delegated decisions without oversight are likely to create risk under any such new regime.
Employers handling high volumes of requests, operating decentralised management models or managing existing dispute exposure should assess whether current practices would satisfy a consultation-based standard when implemented.
At this stage, employers should focus on awareness rather than operational change.
