ACAS Code of Practice brings flexible working relief to employers

For the past four years, many employees have enjoyed the benefits that a more flexible and hybrid approach to working has brought.

But as employers return to the office in their droves, with some four in 10 returning to the workplace in 2023, we are seeing a rise in queries from employees over their rights to flexible working.

Together with recent publicity around the changes to the statutory flexible working regime and some high-profile Employment Tribunal decisions, this means that flexible working has never been higher on the HR agenda.

Despite this, there has been little clarity for employers on how to deal with flexible working requests in the post-pandemic and post-Brexit world. However, that is about to change with the publication of a new ACAS Code of Practice on Flexible Working.

The Code is expected to come into force in April 2024 once ratified by Parliament and is designed to reflect changes to the statutory regime for requesting flexible working.

But what has changed exactly, and what should HR professionals learn from it?  Louise Taft, consultant solicitor in our employment team, explains in this article featured with People Management. 

The new ACAS Code will provide HR professionals with much-needed support to ensure that they are considering flexible working requests within the boundaries of the Regulations. Not only this, it will help to prepare them for potential Employment Tribunal claims.

Statutory changes to be aware of

There are several changes which HR professionals will want to be aware of, including the fact that:

• Employees will be able to request flexible working from day one of their employment.
• Employees can now make two flexible working requests within a 12-month period.
• Employees no longer need to explain the effects of the flexibility requested and how that might be dealt with, but still need to explain the change they want and when they want it to come into effect.
• Before rejecting a flexible working request, there is a new requirement to consult with the employee.
• Employers need to give their decision within two months.

The new Code isn’t just to support employers – it can also be taken into account by an Employment Tribunal in deciding whether you have complied with the Regulations, so you need to take careful note of what is expected of you.

Whilst there are some legal imperatives that you must do under the new Code, there are also several recommendations which, whilst not obligatory, are generally considered to be best practice.

Clarity & Communication

Ensure that you have a clear policy and procedure to handle flexible working requests so that everyone is aware of what is expected. As part of this, make sure that your employees understand what ought to be included in their request.

Once you receive a request, you should invite the person in question to a consultation meeting held in private, either in person, on the phone or via a video call.

Be sure to discuss the request without unreasonable delay, whilst giving you ample time to prepare, and make sure that the person holding the meeting has enough authority to actually make a decision.

Whilst there is no statutory right for employees to be accompanied at flexible working discussions or appeals, it is good practice to allow a companion who can support both parties to find a mutually agreeable solution. Therefore, make sure that you inform employees that they can be accompanied if they want to.

Undertake a reasonable discussion and consider the request carefully, explaining potential benefits and pitfalls, as well as any practical things to consider.

If you don’t feel able to accept the request in full, discuss whether modifications or alternatives might suit you both, or discuss whether a trial period could be appropriate to assess the feasibility of the request.

Impact, Implementation & Review  

When assessing the request, you need to carefully review the effect of the change they have asked for and the potential benefits or impact of accepting or rejecting it.

Keep a written record of the meeting to accurately reflect the discussion and confirm the decision in writing, without unreasonable delay.

If granting the request, you should offer the employee a discussion regarding implementation, which might include an agreement on commencement date or review dates to see how it is working.

Refusal & Appeal

If you are going to refuse a request, you should clearly explain the business reasons together with any additional information which helps to explain the decision.

Whilst there is no statutory right to appeal, allowing an appeal is good practice. You should explain, as part of your refusal, how employees can appeal as well as the timeframe within which to do it.

You should host your appeal meeting without unreasonable delay. The meeting should be dealt with impartially by someone with sufficient authority to make a decision. Ideally, this person should not have been involved in the original decision.

Inform the employee of the appeal decision as soon as possible, making it clear what has been decided and why. Be sure to keep a record of the appeal meeting and ensure that it gives an accurate reflection of the discussion.

If the person in question doesn’t attend a meeting or appeal without good reason, you are within your rights to consider the request withdrawn, but should inform the employee in writing.

Finally, extensions to the two-month consideration period can be agreed, but the employee should be confirmed in writing to avoid any confusion.

With more and more businesses set to return their teams to the workplace, we can expect to see a flurry of flexible working requests and subsequent cases before the Employment Tribunal.

With this in mind, the ACAS Code on Flexible Working couldn’t have come soon enough. By following the guidance and implementing as many of the best practice examples discussed, you should find yourself on the right side of the Employment Tribunal fence.