Flexible Working Requests Get a Reasonableness Test, and Records Will Carry the Weight

By Esther Smith

Most employers spend at least an hour turning down flexible working requests, and a third spend more than two. Those figures come from the government’s own consultation response on the new rules, and they describe the process before it gets harder.

It gets harder because the Employment Rights Act 2025 adds two tests. An employer can refuse only on one of eight listed business grounds, and only if refusing is reasonable. It must also tell the employee in writing why it thinks the refusal is reasonable. The government puts both changes in autumn 2027, although Acas’s own page on the Act says the government hasn’t said when in 2027 most of the Act’s changes arrive.

What the new rules change for flexible working requests

Acas opened a consultation on 1 October on a redrafted Code of Practice for flexible working requests, and it closes at 11.59pm on 17 December 2026. Employers, unions, HR professionals and individuals can all respond. The 2024 code stays in force until the law changes, so current decisions still follow it.

The draft shows where the legal edges sit. Employers must hold a meeting before refusing, with a view to reaching agreement, and give fair and reasonable notice, with no fixed period set. The employee gets no statutory right to be accompanied and no statutory right of appeal. The government’s February factsheet is explicit that the reforms create no entitlement to work flexibly.

The employer’s worry is fair

Start with the finance director’s view. Nearly eight in ten employers in the consultation worried that approving one request would trigger similar ones from colleagues, and two thirds worried about how a decision would look to others. The British Chambers of Commerce pointed out that a week’s notice before the meeting leaves about five weeks of the two-month decision period. Every extra step costs manager hours in every team, and "reasonable" will be judged case by case, so nobody can price it in advance.

Treat those figures with care. Only 108 employers answered that part, and consultation respondents choose themselves.

The same consultation shows the other side of the ledger. Among employees who hadn’t asked, the most common reason was expecting a no. Of 330 people who reported an outcome, about six in ten were approved, one in seven agreed an alternative and about a quarter were refused. An Acas poll of 1,020 employees found nearly eight in ten rate flexible working as important, against two in ten who don’t.

Legal risk around flexible working requests looks small by comparison. Acas says flexible working accounts for under 1% of its early conciliation notifications and tribunal claims, as its consultation foreword notes. A budget line for litigation would be hard to defend. The cost sits in manager time and in staff who stop asking.

For a board paper, the comparison sits between the extra hours that reasoned decisions on flexible working requests will take and the cost of replacing someone who left after a refusal they didn’t follow.

Last year’s refusals will show how long each one took, which gives HR a baseline for that comparison.

Minister Kate Dearden called the right flexibility "the difference between staying in a job or leaving it".

Our earlier piece on why employee loyalty is conditional describes loyalty as an ongoing negotiation, and a refusal is the point where an employer’s terms show.

What a defensible refusal file holds

The draft code shows what a decision will be tested against. A refusal must name the business ground, explain why it applies and explain why refusing is reasonable, in enough detail for the employee to understand it. Employers should also keep a record of what they relied on, because it may matter in a tribunal.

That gives HR a test it can say out loud to a manager tomorrow. The test is whether someone who wasn’t in the room could read the file and say which ground applied, what evidence backed it and what else was tried. A file that passes holds five things:

• The business ground, named from the eight in the Act
• The evidence relied on, such as workforce, service delivery or customer data
• The alternatives considered, such as a different start time or a trial period
• The meeting summary, with key points and any actions agreed
• The reasoning that links that evidence to this employee’s request

The same evidence will often serve the next request for a similar role, which is how the hour or two gets recovered. The draft code still says each case is assessed on its merits, so a file can inform the next decision without settling it.

Where managers will need practice

The invitation is where the draft code gives managers least room. It says the invitation should not state or imply that a final decision has already been made, and the person at the meeting must be able to discuss the request meaningfully and explore ways to reach agreement. A manager who has decided in advance will find that hard to disguise on paper.

The government has also clarified that an employer need not decide in the meeting itself and may take further time afterwards, particularly where an alternative needs thinking through. That eases the five-week arithmetic, though the two-month decision period still applies.

Meetings about flexible working requests are a skill nobody picks up by osmosis, and research EMex reported found more than half of new managers receive no training at all. Worth a look before 2027: a rehearsal where one manager plays the employee and the other has to explore alternatives before deciding anything.

Shift-based teams are where the evidence will be most concrete, because rotas and coverage data already exist. Our piece on keeping a flexible frontline workforce connected covers the communication side.

What stays in your hands

The consultation runs until 17 December, and employers with shift patterns, small teams or high request volumes are the ones the draft needs evidence from. Its questions cover the four principles, the meeting guidance and how the code works for organisations of different sizes.

Before then, worth a look at the last ten refused flexible working requests, read as a stranger would read them. Wherever a file goes thin is where manager training starts, and a response to Acas by 17 December is the place to say whether the draft asks for too much.