New ERA 2025 Consultations On Flexible Work Requests, Fire And Re-hire And Other Reforms

The government has recently published consultations on the detail of some of the Employment Rights Act 2025 (ERA 2025) changes scheduled for 2027. A list of consultations has been made available here; the five published so far this month are on:

• the proposed new statutory process for consultation where an employer proposes rejecting a flexible working request (open until 30 April)
• the extent to which fire and re-hire 'restricted variations' should apply to expenses, benefits and shifts (open until 1 April)
• modernising the Agency Work Framework including bringing umbrella companies into scope (open until 1 May)
• strengthening the law on tipping (open until 1 April)
• union recognition code of practice and a-balloting unfair practices (open until 1 April)

Acas has also published a consultation until 17 March on its draft Code of Practice on time off for trade union duties and activities.

The consultation on flexible working requests asks how employers currently handle requests and seeks views on a new mandatory process; the aim is to introduce a more consistent approach to include constructive conversations and consideration of potential alternative arrangements. Currently the law only specifies that employers deal with requests in a 'reasonable manner', consult with the employee if proposing to reject a request, have one of eight prescribed grounds for rejecting a request, and provide a written decision on the request within two months (or longer if agreed). It is left to the Acas Code and non-statutory guidance to suggest further details of what amounts to a 'reasonable' process and what 'consultation' requires. In 2027 the ERA 2025 will introduce a new requirement that it must be reasonable for the employer to reject the request on the prescribed ground, to confirm to the employee the prescribed ground relied on and explain its reasoning, and to comply with a new statutory process when consulting the employee (if proposing to reject a request). The latest consultation concerns the proposed statutory process only; the government states that Acas will consider revising its Code to include specific guidance on the new requirement for a rejection to be reasonable and there may be further public consultation on that aspect.

The proposed mandatory consultation process draws on the good practice suggestions set out in the current Acas Code and non-statutory guidance, formalising various provisions as statutory requirements. It is therefore unlikely to require a significant shift in approach from larger employers. Consultation (if proposing to reject a request) is to be specified as requiring a meeting with the employee with a stated objective of considering ways to address challenges with the requested arrangement and exploring whether a suitable alternative arrangement could be agreed. The meeting must be held without unreasonable delay (with a recommendation that it be held within six weeks of the request), with advance notice to the employee (alternatives suggested are 1 day, 3 days, 1 week, or 'fair notice') of the date and the context of the meeting (it is unclear whether the 'context' means simply setting out that the employer is considering rejection and the statutory objective of the meeting, or something more eg the proposed ground for considering rejection). An individual with authority to make a decision must attend the meeting on the employer's behalf, clarify whether the request is for Equality Act reasonable adjustments, identify the problems with accepting the request, consider ways to overcome these (with the suggested option of a trial period) and explore alternative arrangements. A record must be kept of the discussion and a written summary of what was discussed and any conclusions or next steps agreed must be provided to the employee, in addition to confirming the outcome of the request (ie whether it is approved/rejected/an alternative agreed). The consultation paper also asks what additional guidance would be useful.

The fire and re-hire consultation concerns the ERA 2025 provisions rendering it automatically unfair to dismiss an employee in order to bring about a 'restricted variation' to their employment contract (unless an employer is in severe financial difficulties and has no reasonable alternative). The ERA 2025 defines restricted variations as a reduction in pay (save for such expenses and benefits as are excluded in regulations), a reduction in time off, a change to pay-related targets, pension or total hours, a variation to shifts as specified in regulations, or the addition of a new clause allowing unilateral variation of these terms. The consultation concerns whether regulations should (i) exclude all benefits and expenses from the definition of 'restricted variation' (the government's current preference) or only certain types of share schemes, travel expenses and accommodation, and (ii) which shift changes should be included in the definition – here the government favours only including 'the most extreme shift changes' as restricted variations, ie from day to night working (or vice versa) and weekday to weekend working (or vice versa). (Dismissal to make a change other than a restricted variation can still be ordinarily unfair, and the ERA 2025 will add specific factors a tribunal must take into account in those cases.) A public consultation is planned on revising the statutory Code of Practice on dismissal and re-engagement to reflect these new rules.

Consultations still to come include on the changes to the collective redundancy consultation threshold, the definition of 'excepted agreements' carving out certain arrangements from the restrictions on non-disclosure agreements, the detail of zero/low hours protections, the steps to be specified for preventing sexual harassment and various union provisions (eg blacklisting, detriment protection).

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