This month ACAS published a draft Code of Practice on requests for flexible working (Code). The Code, which is expected to be brought into force in April 2024 alongside new flexible working legislation, provides guidance to employers and employees on flexible working requests made from 6 April 2024.
Changes to flexible working that are due to come into effect from 6 April 2024 include a ‘day one’ right for employees to request flexible working (reduced from the current requirement to have 26 weeks’ service in order to make a flexible working request); the right for employees to make two flexible working requests per year (an increase from the current right to make one request per year); a requirement for employers to consult with staff members before rejecting their request; and a reduction in the time employers have in which to make a decision, from three months to two months.
This blog discusses the revised Code, focusing on how an employee will be able to make a flexible working request; the necessary considerations when dealing with a flexible working request; and how to consult and communicate with an employee in relation to a request. Note that ACAS may make further changes to the Code, as it is still in draft form, but we expect any changes to be minimal.
How staff can make flexible working requests under the Code
Every employee has a statutory right to request flexible working, and from 6 April 2024 this right will apply from the first day of employment (currently an employee only has this right if they have been working for their employer for 26 weeks). From 6 April 2024, an employee will also be able to make two statutory flexible working requests per year (but only one request will be permitted to be live at any one time). For what is considered flexible working, see our Q&A.
Some of the basic requirements for making a statutory flexible working request will remain the same, namely that the request must:
- be in writing and dated;
- specify what change(s) the staff member is seeking to their employment terms and conditions and from what date they would like that change to be effective; and
- say whether the staff member has made a flexible working application before (and if so, give the date of that application).
However, from 6 April 2024, an employee will no longer have to explain the effect they think the requested change will have on you as their employer and how, in their opinion, any effect might be dealt with. Our Flexible working toolkit will be updated when the new rules come into force.
How to deal with a flexible working request
1. Considering a flexible working request and relevant grounds for refusal
When you receive a formal flexible working request, you must consider the request in a reasonable manner, which should include assessing the impacts of the requested change on both the business and the employee. You are required to agree to the request unless you conclude that one or more of the following grounds applies (this rule is unchanged under the new legislation):
- there is an unacceptable burden of additional costs;
- the change would have a detrimental impact on either quality, performance (of the individual or team) or the ability to meet customer demand;
- you are unable to reorganise work among your staff;
- you are unable to recruit cover;
- there is insufficient work during the proposed periods of work; or
- your business has planned structural changes.
For more detail on these grounds, see our Q&A.
When considering a flexible working request, you must be careful not to discriminate against your employee (either directly or indirectly). ACAS has emphasised this in their new Code. For more information about dealing with flexible working requests from disabled employees and those with childcare responsibilities, see our Q&A.
2. Consulting with your employee
Under the new Code and associated legislation, from 6 April 2024 employers will be required to consult with employees before rejecting a flexible working request. Unless you decide to agree to a flexible working request in full, you should invite the employee to a consultation meeting before making a decision on the request. This meeting should be held privately, either in person or remotely, and without reasonable delay due to the statutory two-month period for deciding requests. It is best practice to allow your employee to be accompanied (if they wish) to the meeting by a colleague or trade union representative.
During the meeting, you should ensure that all relevant information is understood by your employee and discuss the impact of accepting or rejecting the request, as well as the practical considerations in relation to implementation of the requested change(s). The discussion may lead to the conclusion that the request cannot be accepted in full, but you should discuss any potential modifications to the request to suit both the business and the employee. A written record of the meeting should be kept.
3. Communicating your decision
Once you have made a decision about a flexible working request, you should inform your employee of your decision. The response should be given in writing and without unreasonable delay.
If you agree to the request, or to a modified request, you should confirm the details of the agreed arrangement and ensure that the employee has the opportunity for further discussion if required.
If you reject the request, you should clearly explain which business reason is applicable and make it clear that the employee has the option to appeal.
4. Handling appeals
The new Code sets out specific steps for dealing with appeals against flexible working decisions, which you must follow. If an employee informs you that they want to appeal a decision, you should arrange an appeal meeting promptly. Where possible, a meeting should be held by a manager who has not had any involvement with considering the request previously. A written record of the appeal meeting should also be kept. Your employee must then be informed of the appeal outcome in writing and without unreasonable delay.
You must also protect your staff member from detriment or dismissal associated with their flexible working request and/or any legal proceedings involving their flexible working request.
If you are dealing with a flexible working request, you can use our Flexible working toolkit which contains documentation and guidance for carrying out a full and fair process. We will update this toolkit when the new legislation and Code of practice come into force later this year.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.