Flexible working requests
The existing day one right to flexible working will be enhanced providing that a request can only be refused where it is reasonable to do so (in addition to the eight statutory business reasons).
Implementation Status
Consultation awaited (early 2026?)
The government will publish a Code of Practice to assist employers in considering requests and meeting their obligations under the new reasonableness test.
ERA: Expected in force 2027.
- Action
With many employers reviewing their hybrid arrangements, more flexible working requests may arise which will need to be managed carefully in line with the existing statutory requirements and discrimination obligations. Before the new proposals take effect, managers may find themselves under increasing pressure to agree to requests and will need to manage expectations.
Managers need to be trained on identifying and managing requests, including dealing with competing requests and identifying discrimination issues. When the reforms take effect, this training will need to incorporate the new procedural requirements and guidance on reasonableness, particularly given the heightened risk of refusal being challenged on grounds of reasonableness and scrutinised by an Employment Tribunal.
In advance of the reforms, it may be helpful to consider now how roles can be made more flexible and the steps that would need to be put in place. Trial periods may become more commonplace.
Flexible working policies and procedures will need to be updated once further details are confirmed.
- In detail
The existing statutory provisions will be amended so that as well as identifying one or more of the existing statutory grounds for refusal, an employer will also need to show that it is reasonable for it to refuse the application on that ground.
Where an application is refused, the employer must notify the employee of the decision stating its grounds for refusing the application; and explaining why it is considered reasonable to refuse the application for those reasons.
The ERA also provides that an employer is not required to disclose any information contrary to the interests of national security when refusing an application.
- Impact
Since April 2024, employees have a day one right to make a statutory request for flexible working. Employers can only refuse a request on one of eight statutory grounds:
Burden of additional costs
Detrimental effect on ability to meet customer demand
Inability to reorganise work among existing staff
Inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Insufficiency of work during the periods the employee proposes to work
Planned structural changes
At present, an employer must deal with a request in a reasonable manner, but the reason for rejecting the request does not of itself need to be reasonable (although other legal considerations, such as discrimination rights, may apply).
The government's intention is that the reform will see more requests being agreed, supporting working people to enjoy a better work-life balance benefitting their wellbeing and productivity and encouraging economic growth by giving employers a strong talent-pool to draw from.
However, employers may see an uptick in internal appeals and tribunal claims over the "reasonableness" of a refusal. The current statutory penalty for failing to comply with the statutory rules is eight weeks' pay (currently capped at £643 per week). However, tribunals can also order an employer to reconsider the request. Employers should also factor in that may claims are also accompanied by others, such as discrimination and constructive unfair dismissal and for which compensation awards may be far higher.
Statutory Code on a right to switch off.
A statutory Code of Practice will be introduced, providing for a right to switch off.
Implementation Status
- The government indicated that a Code will be progressed alongside the Employment Rights Act and beyond.
- However, recent press reports have suggested that this proposals may no longer be pursued.
- Action
Working practices will need to be reviewed and adapted in light of any Code; understanding any impact on client/customer demands, together with training for managers on the Code's provisions, will be key.
It is important in any case to remain mindful of their health and safety obligations towards employees, particularly given the prevalence of mental health issues. Consider what steps can be taken to ensure employees are supported directly or via third parties. Working practices (particularly given the current hybrid working environment currently adopted across many workplaces) should also be reviewed and use of technology policies revised as appropriate to ensure that all employees and managers adopt best practice and manage their time and use of technology appropriately.
Particular care will need to be taken when working with colleagues and/or other organisations across jurisdictions who may be working in line with their own jurisdiction's/organisation's requirements on a right to disconnect.
- In detail
We are awaiting further details.
- Impact
The government's initial proposal for a mandatory right to disconnect would have potentially significantly impacted business operations and, as well as the increasing flexibility many employees are seeking to manage their work in light of their own personal circumstances. Further detail on the Code is needed to understand what impact this may ultimately have.
Modernisation of health and safety guidance and regulations
Health and safety guidance and regulations will be modernised.
Implementation Status
- A review will be undertaken as a first step and brought forward "in due course".
- Action
- Anticipate the particular issues that may arise when employing older workers or those who have long term health conditions and may have been out of the working space for a period of time. It will also be important to implement management training to recognise where individual needs will need particular support, for example where an employee is neurodiverse or has a mental or physical health condition which may require reasonable adjustments.
- Consider wider initiatives supporting the health and wellbeing of the workforce: encouraging healthy lifestyles and providing access to mental health resources and support, recognising that different generations may face different stressors, and customised benefits, including healthcare and childcare support, appealing to various age groups. The government has indicated that individuals will need to take increasing responsibility for their own health and wellbeing, supported by technology.
- In detail
The government has stated that its review will cover:
neurodiversity awareness in the workplace;
how to modernise health and safety guidance, with reference to extreme temperatures;
whether existing regulations and guidance is adequate to support and protect those experiencing the symptoms of long Covid;
and ensuring health and safety reflects the diversity of the workforce.
- Impact
- The stated focus on neurodiversity awareness and long Covid recognises the increasing need for employers to understand and have guidance on managing these issues in the workplace. The government is also committed to supporting those going through the menopause in its proposals on gender equality plans.
- The government is also tackling getting those who have been termed "economically inactive" back into work; employers should anticipate managing an increasingly diverse workforce with potentially a greater number of ill health issues.
Supporting workers with terminal illness
Supporting workers with a terminal illness through the Dying to Work Charter.
Implementation Status
- Implemented without legislation.
- Will form part of the government's "longer term delivery".
- Action
Many employers are already actively supporting employees to ensure that they undertake appropriate medical checks and seek treatment at an early stage.
Pending delivery of the Charter, employers should review the support and guidance on offer; many charities are active in this space and provide guidance on illnesses addressing the workplace.
- In detail
We are awaiting further details.
- Impact
There is increasing awareness of the impact of cancer and other terminal illnesses impacting those still working and are potentially likely to increase with an ageing workforce.
Getting Britain working
The government has published a white paper "Get Britain Working" with the intention of reforming employment, health and skills support to tackle rising economic activity levels, support people into good work and create an inclusive labour market in which everybody can participate and progress in work. This intended to "complement" the Make work pay reforms including those around tackling job insecurity and expanding flexible working.
Implementation Status
- Awaiting launch of independent review into role of UK employers in promoting healthy and inclusive workplaces and increase the recruitment and retention of disabled people and those with a health condition.
- Action
- Anticipate the particular issues that may arise when employing older workers or those who have long term health conditions and may have been out of the working space for a period of time. It will also be important to implement management training to recognise where individual needs will need particular support, for example where an employee is neurodiverse or has a mental or physical health condition which may require reasonable adjustments.
- Consider wider initiatives supporting the health and wellbeing of the workforce: encouraging healthy lifestyles and providing access to mental health resources and support, recognising that different generations may face different stressors, and customised benefits, including healthcare and childcare support, appealing to various age groups. The government has indicated that individuals will need to take increasing responsibility for their own health and wellbeing, supported by technology.
- In detail
The government has committed to launching an independent review into the role of UK employers in promoting health and inclusive workplaces, considering what more can be done to enable employers to increase the recruitment and retention of disable people becoming unwell at work and promoting good, health workplaces; and undertaking early intervention for sickness absence and increase returns to work.
The review will run until next summer and the government has stated that it will involve "wide-ranging" engagement with employers, employees, trade unions, health experts and disabled people and those with health conditions.
- Impact
- Employers should anticipate managing an increasingly diverse workforce with potentially a greater number of ill health issues.
