Leadership1 publisher3 min readPublished
Flexible working refusals will need a reason employment tribunals can examine
Employers refusing flexible working requests will have to show it is reasonable to rely on one of eight statutory grounds, under rules expected in late 2027. Rulings on what counts as reasonable will lag the rules by years, so HR teams will apply the test with little guidance.
The Board Room · Leadership desk
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What happened
- Louise Haigh, the first secretary of state, told the TUC Congress last month that the regulations will be toughened, with in-person meetings to consider work-from-home requests.
- Since April 2024 the right to request flexible working has applied to all employees from their first day, regardless of length of service.
- Barclays recently told staff to be in the office at least three days a week, or four if senior, and Fox says there is no settled view on whether that is reasonable or fair.
- Employment judges will usually weigh these claims without lay members drawn from the industry and union sides, according to Fox.
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Why it matters
- exposure Business reasons that tribunals cannot now question become open to challenge, so the written rationale behind each refusal acquires legal weight it lacked before.
- constraint HR teams will apply the reasonableness test for two years or more before tribunal decisions show what a 'justifiable reason' means.
- decision Firms with fixed office-day rules will have to decide whether the rule itself is a reason they can defend when an employee asks for more days at home.
- cost If Haigh's version reaches the final text, every work-from-home request an employer means to refuse will first cost a face-to-face meeting, a manager-time burden that grows with request volume.
The Act changes what a tribunal is allowed to look at. Under the current regime, employers need only show they dealt with a request in a reasonable manner [7]. Richard Fox, a partner at Keystone Law, wrote in Personnel Today [17] that "the employment tribunal is not currently able to question the rationale or business reasons that lay behind the employer's decision" [8]. Once the new provisions apply, the reasoning itself is in scope, because the employer has to show it was reasonable to rely on the ground it chose [3]. The tougher version the government has signalled would require a "justifiable reason" for a refusal [6]. It would also set a default that requests are granted unless the employer can point to something specific [12].
Fox objects to the direction. "It now appears the government wants to go further and in effect load the dice in favour of the requesting employee," he wrote [9]. "The issue is that they are doing so when the debate around flexible working is far from settled amongst the business community and the working population at large" [10]. As a description of public opinion, that holds. I think it matters less to an individual employer than it sounds. A tribunal hearing a claim will be asking whether one employer's stated reason for one refusal met the test [3]. The regulations that will set that test have not been published [4].
Timing is the harder constraint. The new rules are expected next autumn, in late 2027 [2]. Fox wrote that few flexible working cases reach tribunals now, and that cases are often not heard for at least two years [13]. At that pace, a refusal issued in the first weeks of the new regime and taken to a claim would often not reach a hearing before late 2029 [1]. He wrote that "this is going to be a slow and laborious process" [14].
The government has chosen a stronger presumption for the employee [12]. Employers pay for that choice in uncertainty about where the line sits during the years before rulings arrive [1]. "Employers and their HR teams are entitled to want to have some degree of clarity as to where the line will be drawn," Fox wrote [15].
This quarter's decision is narrow. A refusal issued now is still judged on process [7], and the new test does not apply until the rules commence [2]. What an employer can settle now is how refusals are written down. In my view, a refusal letter drafted to pass a process test will be thin evidence once a tribunal can ask whether relying on the chosen ground was reasonable [3].
What to watch
- Publication of the regulations, and whether they define a 'justifiable reason' or list what counts as one.
- Whether the in-person meeting requirement Haigh described survives into the final text, and whether it covers all flexible requests or only home working.
- Confirmation of the commencement date, currently expected next autumn in late 2027.