Flexible Working as Default: New Rules under the Employment Rights Act 2025
Flexible working is becoming the default for all employees in Great Britain. Employers must apply a 'reasonableness test' to refuse a request.
Visión general
The Employment Rights Act 2025 amends section 80F of the Employment Rights Act 1996 to make flexible working the default position in Great Britain. Under the current law, employees have a statutory right to request flexible working from day one (since 6 April 2024), but employers can refuse on one of eight statutory grounds without any reasonableness assessment. The ERA 2025 changes this: employers must show that refusal is reasonable in light of one or more business grounds. The current eight grounds are not abolished but become factors in the reasonableness assessment. This is a substantive shift in the balance of the statutory right. It does not give employees an absolute right to flexible working — employers can still refuse for genuine business reasons — but it places the burden on the employer to justify any refusal. Employment tribunals will be able to consider whether a refusal was reasonable, not just whether one of the statutory grounds is technically met.
Quién puede usar este proceso
- All employees in Great Britain from day one of employment
- Workers (not employees) do not have the statutory right; though many employers extend the policy to them
Proceso paso a paso
Make the request in writing
An employee can make a flexible working request in writing at any time, setting out the change they want (e.g. compressed hours, part-time, remote work), when they want it to start, and any anticipated effect on the employer. Up to 2 statutory requests can be made in any 12-month period.
Employer must consult
Employers must consult with the employee before reaching a decision. This is a meaningful exchange — not a tick-box. ACAS recommends meeting in person, considering alternatives, and discussing trial periods.
Decision within 2 months
The employer must give a decision (with reasons if refused) within 2 months of the request, unless an extension is agreed. The employer can accept the request in full, accept it in part, propose an alternative, or refuse.
Reasonableness test on refusal
If refusing, the employer must show: (a) one or more of the business grounds applies (burden of additional costs, detrimental effect on customer demand, inability to reorganise work, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during periods proposed, planned structural changes); AND (b) refusal is reasonable in light of the request and circumstances.
Appeal and tribunal
Employees should appeal in writing under the employer's internal procedure. If still refused, the employee can bring an Employment Tribunal claim under s.80H ERA 1996 within 3 months less 1 day of the final decision. ACAS Early Conciliation is required first. Tribunal can award compensation (capped at 8 weeks' pay) and order the employer to reconsider.
Advertencias importantes
Discrimination overlay: a refusal that disadvantages a particular group (e.g. women returning from maternity, disabled employees, employees with caring responsibilities) may also be unlawful indirect discrimination under the Equality Act 2010. This is independent of, and can give higher compensation than, the s.80F right.
Refusal of a reasonable adjustment for a disabled employee can be a separate breach of the duty under s.20-21 EqA 2010, regardless of the flexible working route.
Trial periods are a useful way to test a proposed arrangement — both sides should agree the trial length and review criteria in writing.