Flexible working

Employees with 26 weeks’ continuous service have the statutory right to apply to work flexibly for any reason, and employers must deal with flexible working requests in a ‘reasonable manner’. The Employment Relations (Flexible Working) Act 2023 has received royal assent and will, via secondary legislation on a date yet to be decided, make a number of significant changes to the right to make a flexible working request (see our article here for more details). In anticipation of these reforms, Acas has recently launched a consultation on proposed revisions to its Code of Practice for employers on how to handle flexible working requests in a reasonable manner.

According to Acas, the revised Code ‘seeks to encourage a more positive approach to flexible working’. Acas note that ways of working have changed a lot in recent years as a result of the pandemic response and point to clear evidence that ‘flexible working can bring a wide range of positive outcomes to both businesses and individuals.’

The revised code includes a new ‘foreword’, which places an emphasis on fostering an environment in which flexible working requests are not rejected by default without open-minded consideration and meaningful dialogue. It also reminds employers, for the first time, that employees making flexible working requests have protection from detriment and dismissal. Other revisions seek to strengthen the Code’s good practice message by:

• making it clear that flexible working requests should not be used to make any requests for a reasonable adjustment related to an employee’s disability (these should be dealt with separately);
• suggesting that, even where the employer plans to accept a request, it is good practice to hold a meeting to discuss the request to work flexibly to make sure that ‘an appropriate arrangement is agreed and implemented well’;
• extending the categories of those individuals who may accompany an employee at meetings to discuss the flexible working request (so it matches the right to be accompanied at disciplinary/grievance hearings); and
• providing guidance that if the request is rejected:
  • the employer should both cite one of the permissible business reasons to reject the request, and set out ‘such additional information as is reasonable’ to help explain their decision, so that the employee understands ‘why’ their flexible working request has been rejected; and
  • the employee should be allowed to appeal and, where possible, this appeal should be handled by a manager who has not previously been involved in considering the request.

The draft revised Code can be viewed here.

Details of the consultation can be found here.

Whilst a failure to follow the Code does not, in itself, make an organisation liable to legal proceedings, employment tribunals will take the Code into account when considering relevant cases.