Employees could gain stronger rights to work from home under further changes to employment law, with ministers consulting on new measures that would make it harder to refuse flexible working requests.
The proposals form part of the next phase of reforms linked to the Employment Rights Act, with the government seeking to tighten how decisions on flexible working are made and challenged. The changes would introduce a higher bar for rejecting requests, shifting expectations towards acceptance where arrangements are considered workable.
Workers who believe a request has been turned down unfairly could take their case to an employment tribunal, which would have the power to order a reconsideration and award compensation in certain cases.
The consultation, which runs until April 30, sets out plans to require organisations to accept requests that are “reasonable and feasible”, while also giving clear written reasons where they are refused.
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New test could reshape flexible working decisions
At the centre of the proposals is a planned “reasonableness test”, expected to be introduced next year, which would require organisations to show that a refusal is justified rather than relying solely on existing statutory grounds.
Employees already have the right to request flexible working from day one of employment, with decisions required within two months. But ministers now want to strengthen those rights by making it more likely that requests are accepted where they can be accommodated.
Under the proposed changes, individuals would be able to challenge decisions through a tribunal if they believe a request has been unreasonably rejected. Judges could then require a decision to be reconsidered and award up to eight weeks’ pay in compensation, subject to a weekly cap.
The government has said organisations would still be able to refuse requests on recognised business grounds, such as additional costs or a negative impact on performance, but would need to show that the refusal itself was reasonable.
Legal experts warn of higher scrutiny and risk
Elizabeth Maxwell, an associate solicitor at Morr & Co, a law firm specialising in employment and commercial legal services, said the proposals would place greater emphasis on how decisions are documented and justified.
She told HRreview that the main risk would come from weak or poorly evidenced refusals. “If these changes come into force, the key risk for employers will be failing to evidence the rationale behind any refusal.”
Maxwell said decisions would face closer examination in tribunal cases. “Employers would need to justify refusals by demonstrating that rejecting a request is genuinely ‘unreasonable’, and decisions may increasingly be scrutinised by employment tribunals.”
She advised that decisions should be clearly recorded and based on recognised criteria. “Employers should therefore ensure that decisions are well-documented, consistent, and based on one of the recognised statutory business grounds, such as cost implications, performance concerns or the inability to reorganise work.”
She added that personal preference for office attendance would not be sufficient. “A mere preference for office presence will not be enough.”
Policies and processes likely to come under review
The proposed changes are expected to prompt organisations to review how flexible working requests are handled in practice, particularly where policies have not been updated in line with recent reforms.
Maxwell said preparation would be important ahead of any legal changes taking effect. “Employers should review and update their flexible working policies now, making sure managers understand the need for a fair and transparent process.”
She also suggested assessing roles more closely to determine where remote working may create genuine operational challenges. “Businesses should also consider carrying out impact assessments for roles to identify where homeworking genuinely creates operational difficulties.”
The direction of travel, she said, was towards greater acceptance of flexibility. “Ultimately, these reforms aim to create a presumption in favour of flexibility.”
But she noted that the right to refuse would remain in place, albeit under tighter conditions. “While this does not remove an employer’s right to refuse a request, it does raise the standard required to justify that refusal.”
A government spokesman said the consultation was intended to balance the needs of organisations and workers, saying: “Businesses will only have to accept flexible working requests where reasonable and can reject them where additional costs would be detrimental. We have launched a consultation on flexible working to ensure we get our measures right for both employers and workers.”
With further reforms under consideration, the consultation signals a shift towards making flexible working a more enforceable right, rather than a discretionary benefit, with tribunals likely to play a larger role in resolving disputes.
