Revised Acas code of practice for flexible working

Acas has published its draft revised code of practice on flexible working requests. The date that this guidance will come into force has not yet been announced, although it is anticipated that it will be in April of this year to match the new legislation.

We break down the key points you need to know:

1. A failure to follow the Code does not, in itself, make a person or organisation liable to legal proceedings. However, employment tribunals will take the Code into account when considering relevant cases.
2. Every employee has a statutory right to request flexible working. This right applies from the first day of employment.
3. A request must be in writing and state that it is a statutory request for flexible working. It must include the date of the request; the change the employee is requesting to the terms and conditions of their employment in relation to their hours, times or place of work; and the date the employee would like the change to come into effect. It must also confirm if and when the employee has made a previous request for flexible working to the employer.
4. An employee may make two statutory requests for flexible working within any 12-month period, however, an employee may have only one live request for flexible working with their employer at any one time. (Once a request has been made, it remains live until a decision is made; the request is withdrawn; an outcome is agreed or the statutory tow month period ends.) A request continues to be live during any appeal or any extension to the statutory two-month decision period that an employer and employee may have agreed.
5. Employers must handle every request in a reasonable manner. This should include carefully assessing the effect of the requested change for both the employer and the employee, such as the potential benefits or other impacts of accepting or rejecting it.
6. Employers must agree to a flexible working request unless there is a genuine business reason not to. A decision to reject a request must be for one or more of the eight business reasons which are set out in the Employment Rights Act 1996 (and do not change with this new code).
7. Employers must not reject a request without first consulting the employee. Unless the employer decides to agree to the employee’s written request in full, they must consult the employee before they make a decision. In such cases, the employer should invite the employee to a consultation meeting to discuss the request. The meeting should be held without unreasonable delay.
8. If the original request cannot be accepted in full, the employer and employee should discuss if it may be possible to secure some of the benefits that the original request sought.
9. There is no statutory right of accompaniment at meetings held to discuss a request for flexible working. However, allowing an employee to be accompanied is good practice.
10. Once the employer has made a decision about the request, they must inform the employee of their decision. They should confirm the decision in writing without unreasonable delay, taking into account the statutory two-month period for deciding requests, including any appeal.
11. There is no statutory right of appeal against a decision about a request for flexible working. However, allowing an employee to appeal is good practice.
12. If the employer arranges a meeting to discuss the request, including any appeal, and the employee fails to attend both this meeting and a rearranged meeting without a good reason, the employer may consider the request withdrawn. This would suggest that an employer need not make a decision in the employee’s absence (as they might in other situations such as a disciplinary).

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.