On 11 January 2024, DBT published Statutory Guidance: Revised ACAS code of practice on requests for flexible working, along with an Explanatory Memorandum, following its Consultation: Draft Code of Practice – handling flexible working requests launched in July 2023 (see FC Feature 13 July 2023).
The purpose of the code is to provide practical guidance to employers and employees on the statutory right to request flexible working under the Employment Rights Act 1996 (ERA 1996) (as amended by the Employment Relations (Flexible Working) Act 2023 (see FC Feature 20 July 2023)), and the Flexible Working Regulations 2014 (as amended by the Flexible Working (Amendment) Regulations 2023 (2023 Regulations) (see FC Feature 11 December 2023)).
2023 flexible working legislation
Once commenced, the Act will make the following changes to the flexible working provisions in Part 8A ERA 1996 (ss 80F and 80G) to:
- introduce a new requirement for employers to consult with the employee before rejecting their flexible working request;
- allow an employee to make two statutory requests in any 12-month period (rather than the current one request);
- reduce the decision period (within which an employer shall consider the statutory request) from three months to two months; and
- remove the existing requirement that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.
The 2023 Regulations make changes to the Flexible Working Regulations 2014 by making the right to request flexible working apply from day one of employment and removing the 26-week qualifying period. They come into force on 6 April 2024.
Statutory code of practice
The code revises the existing ACAS Code of Practice on handling flexible working requests which was published in June 2014. The code does not impose any legal obligations and failure to observe it does not in itself make any person liable to legal proceedings, however under s 207 Trade Union and Labour Relations (Consolidation) Act 1992, any of the code's provisions are admissible in evidence in proceedings before any court or employment tribunal and can be taken into account where the court or tribunal considers them relevant.
The Explanatory Memorandum includes details on the outcome of ACAS's consultation, including the following amendments to its draft code:
- further explanation that where an original flexible working request cannot be accepted in full, employers and employees should discuss, for example, potential modifications to that request; and
- the draft code recommended that, where possible, larger organisations should appoint a different manager to handle an appeal. On further consideration by ACAS, the reference to 'larger organisations' has been removed and the code now recommends that appeals should be handled this way 'wherever possible'.
The code's tone and positioning is intended to signal that the starting position for a flexible working request should be to consider what may be possible. ACAS also notes that the option of accompaniment at meetings to discuss flexible working by extended categories of companions (including trade union officials) is not statutory.
ACAS will also produce non-statutory guidance to accompany the code, which is subject to approval by Parliament. The code is then expected to be brought into force in April 2024 alongside changes to the flexible working legal framework.
For further information on the flexible working regime, including requirements around making and responding to flexible working requests as well as enforcement, see Flexible working.
First published on the Employment News Service on 11 January 2024.
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