I’ve written a lot about the Employment Rights Bill on this blog. There is, frankly, a lot to write about. But I’ve tended to concentrate on what I considered to be either the most complex or most controversial of the changes being proposed. In this post I want to look at a proposal that I don’t really think is either of those things – the changes that are being made to the right to request flexible working. 

I want to look at this because of something odd that I noticed in the road map that the government recently published on its implementation of the Employment Rights Bill. The road map sets out when consultations on individual provisions in the Bill will take place and when the government envisages implementing specific proposals. I noticed that when it comes to flexible working the government proposes to start consulting over the changes in the winter of 2025/26 – but that the changes will not take effect until some unspecified date in 2027. That strikes me as an incredibly long lead in for what I’d always regarded as a very minor change in the law. Looking at the bill again, I think there is something I have missed.

What I got wrong about the ‘right to request’

The right to request flexible working was introduced by the ‘New Labour’ government in the Employment Act 2002. It gave employees the right to request a variation in their contract of employment relating to their hours of work or the extent to which they could work from home. I have to admit that I was quite dismissive of this new right when it was introduced. It is, after all, only a right to request something. An employer didn’t have to justify the refusal of a request – merely show that their refusal was genuinely based on one of the list of business reasons set out in the Act. This list is drafted so widely that it is genuinely difficult to come up with a reason that is not on it! By 2002 it was already well established that the refusal to, for example, allow an employee to work part time would be likely to amount to indirect discrimination unless the employer could show that its refusal to agree to the request was a proportionate means of achieving a legitimate aim – so I didn’t think that the new right to request flexible working amounted to much. 

Looking back. I think I was right to the extent that Tribunal claims under the right to request provisions are quite rare. And where they are made, They are almost invariably accompanied by a discrimination claim of some sort. Apart from anything else, the remedy for not complying with the requirements around the right to request flexible working is capped at 8 weeks’ pay.

Where I was wrong, however, was in thinking that the new right to request was unimportant. Over the years, I realised that this relatively modest statutory right had had a major impact on the way in which employers approached the issue. Employment lawyers sometimes forget that most employers do not try to calculate how much they can get away with, but instead do their best to comply with whatever legal obligations are placed on them. Introducing the right to request flexible working has, I think, made a major contribution to the growth and spread of flexible working arrangements across the UK. Depending on your political outlook, you might not regard that as a good thing. But it is a thing nonetheless.

How the right has evolved

The issue of flexible working divides opinion. And the right to request it has been subjected to considerable political scrutiny over the years – with the result that it has been amended several times. The original right introduced in 2002 (in force from April 2003) only covered requests that were made in order to care for a child under the age of six – or a disabled child under the age of 18. It also came alongside a set of regulations setting out how a request should be dealt with. This specifically involved holding a meeting with the employee within 28 days of the application being made and giving written notice of the outcome within the following 14 days. Employees were given the right to appeal against a refusal and the appeal hearing had to be held within 14 days of the employee exercising that right – with the final outcome being communicated within a further 14 days. Meetings under this procedure attracted the right to be accompanied by a fellow employee (although not a trade union representative per se). 

In 2007 the right to request flexible working was extended to cover employees who provided care for an adult as well as those caring for a child, but the next really big change was in 2014 under the Conservative-led coalition government. Part 9 of The Children and Families Act 2014 removed the need for the employee to be a carer allowed flexible working requests to be made for any purpose. But the Act also removed the detailed procedural requirements that formed part of the original right. Instead of holding formal meetings, the employer simply had to handle the request in a reasonable way.  

Fast forward to 2024 and further changes were made. The Employment Relations (Flexible Working) Act 2023 came into force in April 2024. This introduced the requirement for an employer to consult with the employee before rejecting a flexible working request – although it stopped short of specifying any particular procedure that had to be followed. It also allowed employees to make 2 requests in any 12-month period (the previous limit was 1), reduced the time that an employer had for making a decision from three months to two and simplified the request procedure by removing the requirement on the employee to explain what effect the requested change would have on the employer. In parallel with this, the government also made the right to request a ‘day-one’ right – removing the 26-week qualifying period that had previously applied. 

What does the Employment Rights Bill do?

So what does the latest Employment Rights Bill do for flexible working? Apart from some light re-drafting it makes two substantive changes. The first is that the requirement for the employer to handle the request in a reasonable way is replaced by a requirement that any refusal must in itself be reasonable. As part of this, in rejecting a request, the employer must not only specify the reason for the refusal (there is no change to the list of permissible reasons for refusal) but the employer must also explain why it considers the refusal to be a reasonable one.

This is a welcome change, but hardly earth shattering. I think most employers would be surprised to learn that hitherto they were perfectly free to unreasonably refuse a request provided they handled it in a reasonable manner. Very few employers who refuse a flexible working request do so in the belief that their refusal is unreasonable. And most would have no objection to explaining the basis of their refusal and why they think the decision is a reasonable one.

I don’t think employers need two years to prepare for a change of this sort. Nor is it something that the government needs to consult on.

But there is another change made by the Bill, that I admit I have previously ignored. That is a new power for the Secretary of State to issue regulations specifying steps that an employer must take in order for any refusal of a request to be held to be reasonable.

This clearly opens the way for the government to reinstate something like the original procedure that applied when the right to request flexible working was first introduced. Employers could be required to hold a meeting with the employee, to allow a right to be accompanied and the right to appeal. Regulations could specify what information would need to be given to the employee and how the meeting should be conducted. If that is the government’s plan then it would make sense that it would schedule a consultation in the autumn of 2025 but not implement the new provisions until 2027. Not only would that give employers an opportunity to review their own procedures, but it would allow Acas to re-draft its code of practice on the right to request flexible working. 

I’m not a big fan of placing specific procedural requirements on employers (I am worried that the Government plans to do that for probationary periods, but that’s for another time). I would rather focus on the substance of the right itself rather than the bureaucracy that surrounds it. But I think the timetable set out by the government makes it clear that it is not content to just leave the question of reasonableness to the Tribunal and that it does intend to place more specific requirements on an employer considering a request for flexible working. Exactly what that looks like will be one of the many things that the government needs to work out over the course of 2026.