Flexible working: government consultation response and consultation on draft Acas Code

Making flexible working the default

The government states that the ERA 2025 changes to the right to request flexible working will make flexible working "the default". The key change is that employers will only be able to refuse a request for flexible working if they can show that the refusal (for one of the eight current permitted business reasons) is reasonable. However, the government also plans to introduce a mandatory process for employers to follow when handling flexible working requests.

In its consultation response, published on 15 September 2026, the government set out the key requirements of this process:

• Before rejecting a flexible working request, the employer will have to hold a meeting with the employee. The meeting must be held with a view to reaching agreement.
• The employer will have to give the employee fair and reasonable advance notice of the meeting and its purpose.
• At the meeting, the employer must consider the feasibility of the requested arrangement, and address any challenges with the employee. If the requested arrangement is not feasible, the parties will be expected to explore any suitable alternative arrangements.
• Following the meeting, the employer will have to provide the employee with written notification of its outcome, including a summary of points discussed and next steps - e.g. confirmation of any agreed arrangement.
• The employer will also have to provide a written confirmation of its final decision about the request, confirming whether it has approved or rejected it, or if it has agreed to any alternative arrangement.

The government consultation did not address how the reasonableness of an employer's rejection of a flexible working request will be assessed. However, its consultation response specified that Acas would produce guidance on this before the end of the year.

Updated draft Acas Code of Practice

On 1 October 2026, Acas published a consultation on an updated draft statutory Code of Practice on flexible working requests, which is intended to reflect the changes being made under the ERA 2025. The draft Code sets out four principles that are intended to help employers to reach reasonable decisions on flexible working requests.

Reaching decisions based on evidence

• The guidance emphasises that employers should be able to explain what evidence they used to support their decision and why.
• It suggests various ways that an employer could find and use evidence, such as reviewing relevant workforce and service delivery data, considering comparable situations within the organisation or elsewhere, speaking to managers and others about how the arrangement could work, and using risk assessments and other tools to check assumptions.

Adapting to enable the request

• The guidance suggests employers look at reasonable changes they could make to prevent, manage, or reduce the impact of the requested arrangement.
• It suggests adjusting work distribution or work patterns, using technology to support different working arrangements, considering different start dates, or alternative arrangements, and examining whether costs are one-off or ongoing.

Finding solutions together

• The guidance encourages employers to work with the employee and their manager to find solutions to any concerns the employer has about the request.
• It gives examples such as asking the employee what they wish to achieve through the request, agreeing a trial period or time-limited arrangement, and consulting with the employee and their representative to explore whether work can be carried out differently.

Transparency and consistency

• The guidance specifies that employers should explain the impact they believe the requested arrangement would have, including how that impact would arise and why it is significant enough to justify refusing the request. It also recommends that employers explain to the employee how they will make their decision.
• The examples of transparency and consistency include having a written flexible working policy designed in consultation with employees and their representatives, sharing information about the organisation's operations and the possible impact of a requested arrangement, and allowing employees' reasonable requests to be accompanied at meetings.

The draft Code also fleshes out certain aspects of the process described in the government's consultation response. The consultation on the draft Code closes on 17 December 2026. Acas have stated that they will review the draft Code once regulations are published to make sure it accurately reflects the final provisions.

What does this mean for employers?

The introduction of a reasonableness test for refusal of a flexible working request will shift the dynamic and make it harder for employers to refuse such requests in the future. As discussed above, the draft Code provides some guidance on the sorts of things that will be relevant to assessing reasonableness, and as a statutory Code of Practice the employment tribunals will be required to take it into account. It is therefore reassuring that the draft Code expressly acknowledges that how employers put the applicable principles into practice will vary depending on the circumstances, including the organisation's size, resources, and operational needs.

The proposed process for handling flexible working requests will also impose an additional administrative burden, and employers will need to ensure that they update their internal policies and processes and train managers and HR on the new requirements in advance of the changes taking effect. The government has stated that they intend to bring these changes into force in autumn 2027, with the updated Acas Code taking effect at the same time.