New ACAS Code of Practice on Flexible Working Published

Statistics are showing that flexible working requests (“FWRs”) are becoming more frequent with employees post pandemic preferring to work either partly or completely from home.

Changes to the statutory FWR framework from April 2024, coupled with well publicised Employment Tribunal decisions involving FWRs, mean that the current ACAS Code of Practice on FWRs from April 2024, has been updated.

The draft is expected to come in to effect in April 2024 and is intended to ensure employers and HR professionals use good practice when responding to FWRs in line with the new statutory requirements and continue to approach and handle statutory flexible working requests reasonably.

 

The FWR Code of Practice changes

The main changes that employers and HR professionals need to be aware of are:

• There is now a day one right to make a FWR.
• Employees can now make two FWRs in any 12-month period.
• Employees are no longer required to put forward any explanation or case as to how their FWR will affect the employer’s operation or their working role and how those effects can be dealt with to minimise any possible disruption to the employer’s business. However, there is still a need to explain the FWR change they are requesting.
• On receiving an FWR, employers must now consult with the employee before delivering a decision.
• A decision on the FWR must be delivered within two-months of the request being received.

 

Managing flexible working requests

The new FWR Code of Practice will be considered by Employment Tribunals when determining cases involving FWRs and employer’s responses to them.  With this in mind the following points from the draft FWR are highlighted below as best practice tips for employers and HR professionals:

• Ensure your FWR policy is updated to include the new statutory requirements and the ACAS Code of Practice best practice recommendations.
• Update your HR teams and managers on the changes to your FWR policy and provide any necessary training so FWRs are responded to fairly and in line with the new legislation and Code of Conduct. Train managers so they understand the new rules, the risks and their obligations.
• Ensure employees are made aware of the employer’s FWR policy so they understand what should be included in their FWR request and the process that will be followed once it has been submitted.
• Invite the employee to a FWR consultation meeting so you can better understand their request, answer any questions, and provide any clarity on the FWR process.
• Allow employees making a FWR to be accompanied at any meeting. This is not a statutory right, but it shows good practice on behalf of the employer, will provide the employee with assurance that the employer is operating as fair a process as possible and will stand the employer in good stead with an Employment Tribunal.
• Fully consider the FWR bearing in mind the reasons put forward by the employee in support, but also any other information such as feedback from their line Manager, other benefits or pitfalls, practicalities of granting the request and any other factors such as the ability to perform the role remotely. What evidence does the business have to support a “no” decision, remembering that declining flexible working requests carry other legal risks such as discrimination and unfair dismissal.
• Consider whether the FWR could be granted on a trial basis to test the working practicalities of it.
• Respond to the request in good time, ensuring that the decision is fully explained to the employee to help them understand it, rather than simply accepting or rejecting it.
• If the FWR is granted, ensure review dates are scheduled to monitor employee productivity and performance and to obtain employee and Line Manager feedback and consider if any changes are required.
• Keep a written record of all meetings and the factors considered when responding to the request. 
• Where a FWR is rejected, there is no statutory obligation to allow the employee to appeal, but an appeal process will reconfirm to the employee that the employer is willing to ensure a fair process is followed by reconsidering any points of appeal the employee may have as well as standing it in good stead with an Employment Tribunal.  This appeal will need to be part of the 2-month process.
• Finally, we would recommend that employers and HR professionals prepare a set of documents with specific criteria that must be considered as a minimum when responding to an FWR.  This will ensure consistency in the approach to a FWR and lessen the risk of any alleged bias or discrimination arising from the employee as all requests will be treated uniformly in line with the set criteria.

 

Next steps

If you have any questions on FWRs, need any support in preparing or updating a FWR policy, delivering training and update sessions or with responding to a FWR, please contact us.