ACAS has published a draft code of practice for flexible working following its consultation on the subject in 2023. It awaits parliamentary approval and if approved, it will come into effect in April 2024. The draft can be found here.

The current ACAS code of practice on handling flexible working requests will continue to apply until the new Code comes into effect.

Employer’s should remember that there has been an existing right to request flexible working since 2014. Broadly speaking, this applies to an employee who has been employed for at least 26 weeks and who has not requested flexible working in the preceding 12 months.  

Why is there a new Code potentially coming into effect?

The Code provides guidance for both employers and employees on their legal rights, responsibilities and good practice in relation to statutory requests for flexible working under the new legislation. The Code should be followed where an employee makes such a request.

What should employers be aware of?

Employers must agree to a statutory request for flexible working unless there is a genuine business reason not to. The potential business reasons are set out in the ERA 1996 and paragraph 9 of the Code. If rejecting a request, clear communication of the reasons and impartial handling of any appeal can assist in establishing that the request was handled reasonably.

Employers should also be aware that ‘flexible working’ is a broad term used to describe almost any working arrangements regarding where, when and how an employee works. This includes but is not limited to part-time working, hybrid working, job sharing and compressed hours.

Failure to follow the Code does not automatically equate to a person or organisation being liable to legal proceedings but the employment tribunals will take the Code into account in relevant cases.

How should an employee make a statutory request for flexible working?

Every employee, from the first day of employment, will have a statutory right to request flexible working.

The request must:-

• be made in writing;
• state that it is a statutory request for flexible working;
• include the date of the request;
• include the change the employee is requesting to the terms and conditions of their employment relating to their times, hours or place of work;
• include the date as to when the changes should come into effect; and
• if and when the employee made a previous request for flexible working to the employer.

Employers should make it clear to the employees that the information above is required in making such a statutory request.

Employees will now be entitled to make two statutory requests for flexible working within any 12-month period. However, an employee may only have one ‘live’ request for flexible working at any one time. A live request is once it has been made and until any of the following occurs:-

• the employer makes a decision on the request;
• the request is withdrawn;
• an outcome is mutually agreed; or
• the statutory two-month period for deciding such requests ends.

Requests are deemed to be live during any appeal or extension to the two-month decision period that may have been agreed.

How should employers consider such requests?

Every request must be handled by the employer in a reasonable manner. Employers should carefully assess the effect of the requested change for both themselves and the employee.

As previously stated, employers must agree to a flexible working request unless there is a genuine business reason not to. The ERA 1996 sets out the eight business reasons in which a request can be rejected:

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• a detrimental effect on ability to meet customer demand
• insufficient work available for the periods the employee proposes to work
• planned structural changes to the employer’s business

What is expected when consulting an employee?

Unless an employer is agreeing to the employee’s written request in full, they should not reject a request without consulting with the employee first. The employee should be invited to a consultation meeting by the employer to discuss the request.

In setting up these meetings, an employer should be aware of the following:-

• the person holding the meeting should have authority to make a decision;
• ensure that a written record of the meeting is made which accurately reflects the discussion;
• ensure the meeting is held without unreasonable delay;
• give the employee a reasonable amount of time to prepare for the meeting while being aware of the statutory two-month period for deciding requests;
• the employee should be notified in advanced about the time and place of the meeting;
• the meeting should be privately held (either in person or via video conferencing – if neither of these are possible, then via telephone call); and
• the content of the meeting and how it is conducted should permit reasonable discussion and consideration of the request. i.e. discuss the potential benefits or impacts of accepting or rejecting the request.

If there cannot be full acceptance of the original request, both employer and employee should discuss if there is the possibility of having some of the benefits in the original request. For example, if there are alternative flexible working options, if any modifications can be made to the original request.

Communicating the decision following a request

Once a decision has been made following the request, the employer must inform the employee of the decision in writing without unreasonable delay (remembering the statutory two-month period). It is always good practice to keep an accurate record of any communications whether agreeing or rejecting the request.

Agreeing to the request

A written decision should confirm the details of the agreed arrangement. The written decision should permit the employee to discuss and clarify any information that would be helpful in carry out the agreed arrangement.

Rejecting the request

The written decision to reject the request should clearly explain the business reason(s) for the rejection. Although there is no statutory right of appeal against such a decision, it is good practice to allow for an appeal. The written decision should make it clear that the employee has the option to appeal, including how and the timeframe for doing so.

Dealing with an appeal

The employer should be informed by the employee the reasons for their appeal in writing. i.e. that there is a new information to be considered.

If an appeal is requested, the employer should arrange an appeal meeting without unreasonable delay and following the guidelines in setting up meetings as above. The main difference is that the appeal should be dealt with impartially meaning that, wherever possible, it should be handled by a manager that was not involved in the original request process.

Other factors to consider

Employees not attending the meeting

Reasonable opportunity should be given to the employee to attend the arranged meeting. If an employee fails to attend the meeting and a rearranged meeting without good reason, the request may be considered withdrawn. If considered withdrawn, the employee must be informed and it should be done in writing.

The statutory decision period

An employer must decide on and communicate the decision of all requests (including any appeals) within a two-month period starting from when the request was first received. The period can be extended by both parties and, if it is, the employer should confirm it in writing.

Protection from detriment and dismissal

An employee must not be subjected by the employer to any detriment or dismissal for the following:-

• an employee has made or intends to make a request for flexible working; or
• the employee has issued legal proceedings against the employer in relation to their right to request flexible working, or has stated that there are circumstances which could constitute a ground for them doing so.

What to do now

Employers should review their current flexible working policies and amend them to reflect the new legislation and ACAS Code of Practice. Contact a member of ViewHR today for support on how to do so.