The part of the recently published Employment Rights Bill dealing with flexible working is actually a bit of a damp squib.

While the government has made bold claims about making flexible working the “default” unless an employer can prove otherwise, the changes are in fact somewhat modest.

Current Law on Flexible Working Requests

As things stand, employees in the UK can request changes to their working arrangements up to twice a year, such as requesting different hours, working from home, or compressing their working week. Employers are required to handle these requests in a “reasonable manner” and must provide one of eight specified reasons if they reject a request. These reasons include considerations such as the burden of additional costs, inability to meet customer demand, or difficulties in reorganising work or recruiting additional staff.

This framework allows for a fairly broad interpretation of “reasonableness” on the part of the employer. As long as one of the eight statutory grounds for refusal is met, there is little requirement for further justification or explanation.

The Proposed Changes in the Employment Rights Bill

The government’s announcement that flexible working would become the “default” created high expectations. But the actual text of the Bill reveals that the changes are much more limited in scope.

Under the new law, an employer can still refuse a flexible working request on the basis of one or more of the eight existing statutory reasons. However, the key change is that the employer will now need to go one step further: they must explain why they consider it reasonable to refuse the request based on these grounds.

For example, if an employer refuses a flexible working request because it would lead to a “burden of additional costs,” the employer will need to explain the specific nature of those costs and why they consider those costs unreasonable in the context of their business. It will no longer be sufficient for an employer to simply state the reason for refusal without providing further justification.

Additionally, there is a new requirement for consultation before rejecting a flexible working request. The Secretary of State will be given the power to make Regulations specifying how this consultation should take place, which may include a requirement for employers to provide written explanations for their decisions. This consultation step aligns the legislation more closely with the existing ACAS Code of Practice, which already recommends consultation as best practice.

Impact of the Changes

Although the requirement to explain refusals more thoroughly may appear to strengthen employees’ rights, the practical effect of the changes is pretty limited. Employers will still retain broad discretion in refusing flexible working requests as long as they can reasonably justify their decisions.

Moreover, there is no change to the penalty for failing to comply with these requirements—employees who are successful in tribunal claims for breach of the flexible working rules will still be entitled to a maximum of eight weeks’ pay. This cap has remained unchanged and provides limited financial risk for employers who do not handle requests in line with the new rules.