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Draft Acas Code of Practice on requests for flexible working

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New Acas Code of Practice on flexible working requests

Changes to flexible working scheme

Current indications from the government are that the Employment Relations (Flexible Working) Act 2023 will come into force on 6 April 2024 and apply to flexible working applications made on or after that date. We discussed this legislation in yr.25, iss.15, pg.1 (see The next step ). In summary, it will: (1)  allow employees to make two flexible working requests in any twelve-month period, rather than the current limit of one - but there can only be one live request at a time; (2) remove the requirement that the employee must explain in their request what effect the change would have on the business and how that might be dealt with; (3) require you to consult with the employee before refusing a request; and (4) require you to make your decision (including on any appeal) within two months, rather than the current three months. In addition, separate regulations will make the right to request flexible working a day one right from 6 April 2024.

Must you agree to a request?

To take account of these changes, Acas has laid before Parliament a new draft statutory Code of Practice on requests for flexible working and, if approved, it will replace the current 2014 version (see The next step ). As it’s statutory, once in force, tribunals will take it into account when considering relevant cases. In particular, it states that you “must agree to a flexible working request unless there is a genuine business reason not to” .

Tip. You’ll still be able to rely on one or more of the eight statutory business reasons to refuse a request and this won’t change that; it’s simply indicating that your starting point should be to consider what might be possible, rather than your default position being to refuse requests.

Code of Practice provisions

Other key provisions in the new draft Code include:

• inviting the employee to a consultation meeting to discuss their request, and this can be held in person or remotely - but there’s no need to do this if you decide to agree to the request in full
• ensuring the content of the meeting and the way it’s conducted allow for a “reasonable discussion and consideration of the request”
• discussing potential modifications to the request, or alternative flexible working options, if the request can’t be accepted in full. The Code also now refers to the possibility of a trial period to assess feasibility
• in the case of agreed requests, offering the employee an opportunity for a discussion to clarify any further information that may be helpful in implementing the arrangement
• where a request is refused, clearly explaining the business reasons and also setting out any “additional information which is reasonable to help explain the decision”
• as good practice, offering an appeal against refusal, and then arranging an appeal meeting chaired by a different, unbiased manager - but there’s no statutory right of appeal
• as good practice, allowing the employee to be accompanied at meetings by a fellow worker or a trade union rep/official (the current version of the Code only refers to a fellow worker) - again, this isn’t a statutory right
• holding all meetings and confirming decisions in writing “without unreasonable delay” .

For our previous article and the draft Acas Code of Practice on requests for flexible working, visit https://www.tips-and-advice.co.uk , Download Zone, year 26, issue 6.