The ability to work flexibly (whether that means working from home, part time, with compressed hours or in some other way) has been a topic of much discussion since the Covid-19 pandemic forced many employers to reconsider their attitudes towards their employees’ way of working. With most employers already offering some form of remote working where this is feasible, and employees caring about their work-life balance more than ever before, changes to the way flexible working requests are dealt with were bound to happen. 

Some such changes have now been given legislative effect by the Employment Relations (Flexible Working) Act 2023 which received royal assent on 20 July 2023. 

It is in this context that ACAS announced its intention to update its statutory Code of Practice (the Code) on handling requests to work flexibly. On 12 July 2023, ACAS launched its consultation on this draft Code.  

Additionally, the Department for Business and Trade has launched a Call for Evidence: Non-statutory flexible working which seeks views from individuals and businesses on their experiences of informal or ad-hoc flexible working and how it operates in practice.

What are the legislative changes? 

The Employment Relations (Flexible Working) Act will amend the flexible working provisions set out in the Employment Rights Act 1996. Its purpose was to "make flexible working the default". It has introduced several changes to the current landscape, including: 

• prohibiting employers from rejecting an application without consultation;
• enabling employees to submit two flexible working requests per year;
• requiring employers to respond to flexible working requests within two months, unless an extension is agreed; and
• removing the requirement for employees to consider the potential effects of their request on the employing organisation and to suggest how to deal with those effects.

Though the new Act introduces several new rights for employees seeking flexible working arrangements, there are some notable changes that the legislation does not introduce. For example, whilst employers may not deny a flexible working request without consultation, there is currently no legislative framework to set out a minimum requirement for what this consultation must consist of. In addition, the right to make a request for flexible working is still only available to employees after 26 weeks of service, although the government has indicated that it intends to bring in secondary legislation to make this a "day-one" right. For further information on the Employment Relations (Flexible Working) Act (which was then a Bill) and the wider legal framework around flexible working please see our previous blog post on this issue. 

What are the proposed changes to the ACAS Code?

In light of these changes to the law, ACAS is updating its Code to reflect current best practice. The Code is statutory guidance, meaning that – unlike the provisions of the Employment Relations (Flexible Working) Act – employers will not be legally obligated to comply with it. However, employment tribunals will take the Code into account when considering relevant cases.

Amongst other things, the draft Code encourages employers to give greater consideration to employee welfare when reviewing requests for flexible working, seeking to reduce the occasions where requests are rejected by default and without consideration and meaningful dialogue. The updated Code guides employers to try, as far as possible, to build flexibility into job roles as part of the job design and recruitment processes. 

Employers are discouraged from rejecting flexible working requests without carefully assessing the effect of the requested change on both the business and the individual. There should be a formal meeting to discuss the request, held without unreasonable delay. There must be a genuine business reason to reject a flexible working request, and a compromise should be sought if the request cannot be accepted in the form in which it was submitted. 

Further updates to the draft guidance include extending the categories of individuals who may accompany an employee at meetings to discuss a request and providing employees with the option to appeal the decision if their request has been rejected. It would also require employers to set out additional information to explain their decision, where relevant and reasonable. 

ACAS has also confirmed that it intends to update its non-statutory guidance on flexible working. 

The consultation on the updated statutory Code is open for responses until 6 September to individuals and businesses alike. Responses should be submitted using ACAS' online form.

What is the DBT consultation?

On 20 July 2023, in conjunction with the Employment Relations (Flexible Working) Act receiving royal assent, the Department for Business and Trade announced a call for evidence on non-statutory flexible working. This relates to flexible working arrangements which are agreed outside the statutory right to request framework. 

The consultation calls for both individuals and organisations to share experiences with more informal flexible working arrangements and how they have operated in practice. This includes both ad-hoc and regular flexible working arrangements.

The consultation is open until 7 November and responses should be submitted via the online survey. 

Comment 

These updates will come as no surprise to those working in HR or employment law given the changes to employee expectations following the pandemic. The changes set out in the new legislation seek to balance the government's aim to "make flexible working the default" against the business needs of employers. While the expectations set out in the updated ACAS draft Code are not overly onerous for employers, they are bound to afford more employees the opportunity to seek flexible working arrangements. The draft Code does, however, remain mindful of the potential impact of some of these requests on a business.

Please do not hesitate to reach out to our PRM team if you require any further information on what the proposed changes to flexible working mean for your organisation in practice or general guidance on offering flexible working to your employees.