ACAS launches consultation on draft flexible working Code of Practice

Consultation comes as Flexible Working Bill continues its journey through Parliament.

The Advisory, Conciliation and Arbitration Service (ACAS) has launched a consultation on its draft of a revised Code of Practice for handling flexible working requests. The draft Code, which is available on ACAS’s website here has been created to take account of the changes to the changes to the right to request flexible working that will take effect when the Flexible Working Bill and associated secondary legislation comes into effect (expected in 2024). 

The right to request flexible working

Once the Act takes effect, the right to request flexible working will change in the following key ways:

• Employees will have the right to request flexible working from day one of their employment and may make two requests in any 12-month period.
• Employees will no longer need to explain how their request would affect their employer or how they will deal with the change.
• Employers will no longer be able to outright reject flexible working requests, and must consult the employee who made the request to discuss alternative arrangements.
• Employers must make a decision on flexible working requests within two months.

 The new draft Code significantly expands on the existing version, not only going into greater detail on how to handle a request but also to emphasise the right to, and how to deal with, an appeal. The draft Code encourages a more positive approach from employers, underlining that requests must not be rejected by default and that employers should engage with those making requests. This includes meeting with the employee to discuss their request and event to confirm the request has been accepted. 

The draft Code has also been adapted to capture the overlapping right of an employee to request a predictable working pattern, and how this might be dealt with as part of a flexible working request, whilst also flagging the specific Code for such a request. 

It is important for employers to follow the ACAS Codes of Practice, as failing to do so can lead to additional liabilities. Failure to follow the Code on flexible working requests does not of itself lead to a direct liability, though a tribunal will take this into account when determining if the right to flexible working requests was infringed. It should be noted however that flexible working requests may invoke discrimination issues (flexible working is often used by those with care responsibilities) which may lead to disciplinary and grievance procedures. In that case, it is worth noting that failure to follow the ACAS Code of Practice on disciplinary and grievance procedures can result in a 25% uplift on any damages awarded by a tribunal.

Consultation

ACAS has opened a consultation to obtain feedback on its draft updated Code on flexible working requests, which closes on 6 September 2023. As noted in the foreword of the consultation, views towards flexible working have shifted significantly since the Code was originally published in 2014. The revised draft Code therefore seeks to build on this shift, highlighting the benefits to employers and employees of flexible working arrangements and taking a much more positive view towards it.

Whilst general views and input are accepted, ACAS has created 11 questions for specific feedback, varying from asking whether the tone of the Foreword properly encourages open-mindedness from employers to specific aspects of what is in the Code and whether they should be there (for example, the reference to a the right to request a predictable working pattern). 

Comment 

Increased flexibility is becoming a much more regular feature in UK workplaces than it used to be. The CIPD viewpoint on flexible working, as one example, is that the COVID-19 drove an increase in working from home and hybrid working opportunities, but that more is needed to increase the uptake of flexible working arrangements. 

As the CIPD highlight, flexible working has the potential to create more inclusive, diverse and productive workplaces and has inclusion and wellbeing advantages for employees that help employers to attract and retain people who might otherwise struggle to remain in employment. Whilst some 60% of employees work in roles that require them to physically be in the office, CIPD’s view is that flexible working practices should be the norm and not the exception for all workers. 

Arguments over whether home or office working leads to greater productivity continue, with some employers having started to pull back on flexibility, albeit with a blend of home and office working.

With the encouragement by the UK government towards flexible working, employers may well see an upsurge in flexible working requests. In such circumstances it is therefore important that the draft ACAS Code of Practice on flexible working requests provides useful guidance to help employers manage within the new legal framework. Employers should take advantage of the consultation to help the draft Code achieve this.