In our recent Workforce Survey 2026, the forthcoming changes to the flexible working regime ranked as the second biggest concern for employers. The reforms continue the shift towards flexible working as a standard feature of employment rather than an exceptional benefit.

We explore what those changes are, what employers must do to remain compliant and how employers often underestimate the legal risk a poorly handled refusal can create, particularly around indirect discrimination claims.

Evolution of the flexible working request

Flexible working requests were originally introduced in 2003 and gave employees with children the right to request changes to their working patterns. Since then, they have evolved to a day one right for all employees. Employers must deal with requests in a “reasonable manner” and provide a decision within two months unless an extension is agreed. Requests can only be refused for one or more of the statutory business reasons, such as detrimental impact on performance, quality, customer demand or the ability to reorganise work among existing staff.

Indirect discrimination risk

However, the greater legal risk often sits outside the flexible working legislation itself. Compensation for a breach of the rules is limited. By contrast, where a refusal disproportionately disadvantages employees with protected characteristics, employers may face uncapped discrimination claims under the Equality Act 2010.

Employers cannot assume that applying a requirement consistently across the workforce avoids discrimination risk. A requirement may still amount to indirect sex discrimination if it disproportionately impacts women and cannot be objectively justified. For example, in a recent case, an employer was criticised for failing to properly consider whether a requirement to work flexibly across weekends placed women at a particular disadvantage because women continue, statistically, to bear greater childcare responsibilities.

How hybrid working impacts tribunal decisions

Tribunals are increasingly scrutinising the quality of the employer’s decision-making process when responding to a flexible working request. Those who rely on vague assertions around “team culture”, “collaboration” or “business needs” without evidence are vulnerable to challenge. This has become particularly relevant in the context of hybrid working, as many organisation attempt to increase office attendance following several years of remote and hybrid arrangements.

However, where employees have successfully worked flexibly for lengthy periods, employers may struggle to justify blanket return-to-office requirements without clear operational evidence. In another recent case, requiring an employee to work full-time in the office indirectly discriminated against women who continue to bear the majority of caring requirements. The employer’s justification arguments were not supported by enough evidence. While tribunal decisions are not binding authorities, they illustrate the increasing willingness of tribunals to challenge rigid attendance expectations.

Disability discrimination risk

Flexible working requests also frequently intersect with disability discrimination obligations. Where an employee is disabled under the Equality Act 2010, flexible working arrangements may constitute a reasonable adjustment. Refusing homeworking, adjusted hours or amended working patterns without proper consideration can expose employers to claims for failure to make reasonable adjustments and discrimination arising from disability.

Preparing for the new “reasonableness test” under Employment Rights Act 2025

Under the Employment Rights Act 2025, the risk moves further upwards. From 2027, employers will need to explain why refusing a request was reasonable. Dealing with requests in a “reasonable manner” goes beyond following a procedural checklist. Employers will need to show proper engagement with requests and a willingness to explore workable solutions. Failing to do so exposes them to claims for up to eight weeks’ gross pay and an obligation to reconsider the decision. To manage this risk, employers should ensure there’s enough governance around flexible working requests and that managers understand the importance of documenting their rationale carefully.

In practice, this means employers should:

• Meet with the employee to discuss the request properly.
• Identify the precise operational concerns arising from the proposed arrangement.
• Consider alternatives or trial periods where possible.
• Assess whether the requirement disproportionately impacts certain groups.
• Ensure refusals are evidence-based.
• Document the reasoning process carefully.

Employers who approach flexible working requests with rigid, one-size-fits-all policies are increasingly likely to face legal and employee relations risk. The most effective protection remains a thoughtful, evidence-based and consistent approach to decision-making.

Get in touch with Charlie Barnes to ensure your flexible working policies remain compliant.

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