Flexible Working: all you need to know about the upcoming changes

Changes to the right to request flexible working come into force on 6 April 2024. Acas has updated its Code of Practice to reflect these changes and to provide more detailed guidance for employers on handling flexible working requests.

Flexible working requests: what is changing?

The following changes to the right to request flexible working are being made from 6 April:

• Employees will be able to make a flexible working request from the first day of employment (instead of having to wait 26 weeks)
• Employees will be allowed to make two flexible working requests in any 12-month period (instead of one)
• The decision period for employers to deal with a flexible working request will be two months (instead of three)
• Employers will be required to consult with employees before rejecting a request
• The requirement for employees to set out how their employer might deal with the effects of their flexible working request will be removed.

The Acas Code of Practice

The Acas Code provides guidance to employers and employees on the statutory right to request flexible working. It distinguishes between legal requirements (where “must” is used) and best practice (where “should” is used). While a failure to follow the Code does not give rise to standalone claims, employment tribunals will take the Code into account when deciding claims. It is therefore important that employers not only comply with the law, but also follow the Code’s best practice recommendations when considering requests.

The statutory decision period

All requests, including any appeals, must be decided and communicated to the employee within two months from when the employer first receives the request. The employer and employee may agree to an extension, in which case the employer should confirm this in writing to the employee.

Making a flexible working request

An employee making a flexible working request must make it in writing, state that it is a statutory request for flexible working and include the following information:

• the date of the request
• the change they are requesting to the terms and conditions of their employment in relation to their hours, times or place of work
• the date from which they would like the change to take effect, and
• if (and, if so, when) the employee has made a previous request for flexible working.

Employers should make clear to employees that the above information must be included in any statutory request for flexible working. This should therefore be made clear in flexible working policies.

An employee may have only one live request for flexible working with their employer at any one time. A request remains live until any of the following occur:

• the employer makes a decision about the request
• the employee withdraws the request
• an outcome is mutually agreed, or
• the statutory two-month decision period ends.

A request continues to be live during any appeal or any extension to the decision period that an employer and employee may agree.

Considering a flexible working request

Employers must handle requests in a reasonable manner. This includes carefully assessing the effect of the requested change for both employer and employee, such as the potential benefits or other impacts of accepting or rejecting it.

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 listed in the Employment Rights Act 1996, which remain unchanged:

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• a detrimental effect on ability to meet customer demand
• insufficient work available for the periods the employee proposes to work, or
• planned structural changes to the employer's business.

As well as reminding employers that they must not discriminate unlawfully when considering a request, the Code makes it clear that if an employee seeks a reasonable adjustment for their disability through a flexible working request, the employer must consider this in line with its legal obligations under the Equality Act 2010.

Consulting an employee

Employers must not reject a request without first consulting the employee. The employer should invite the employee to a meeting to discuss the request, hold the meeting without unreasonable delay, while allowing a reasonable period for preparing for the discussion and taking into account the two-month decision period.

The employer should notify the employee of the time and place in advance of the meeting. The meeting should be held in private, either in person or remotely via online video conferencing, or where neither of those are possible, via telephone call.

The content of the meeting and the way in which it is conducted should allow for a reasonable discussion and consideration of the request. The Code explains that it will usually be helpful to discuss the potential benefits or other impacts of accepting or rejecting the request, and any practical considerations involved in implementing the request.

If the employer cannot accept the original request in full, the employer and employee should discuss if it may be possible to secure some of the benefits sought through modifications to the original request, or alternative flexible working options. It may be helpful to discuss whether a trial period may be appropriate to assess the feasibility of an arrangement.

In addition, the person holding the meeting should have sufficient authority to make a decision and a written record of the meeting should be kept which provides an accurate reflection of the discussion.

Communicating the decision

Once the employer has made a decision, they must inform the employee of their decision and should confirm this in writing without unreasonable delay, taking into account the statutory two-month decision period, including any appeal.

If the employer agrees the request, or a modified or alternative arrangement after consultation, the written decision should confirm the details of the agreed arrangement. The written decision should offer the employee an opportunity for a discussion to clarify any further information that may be helpful in implementing the agreed arrangement, which might include, for example, agreeing dates to review how the arrangement is working. An accurate record of any such discussion should be kept in writing.

If the employer rejects the request, the written decision should clearly explain the business reasons why and set out any additional information which is reasonable to help explain the decision.

Although there is no statutory right of appeal, allowing an employee to appeal is good practice. The written decision should make it clear that the employee has the option to appeal the decision, explain how to appeal if the employee wishes to do so, and the timeframe for doing so.

Handling an appeal

If an employee wishes to appeal, they should let their employer know the reasons for their appeal in writing. These may be, for example, that there is new information they wish to be considered, or they believe the employer has not handled their request in a reasonable manner. The employer should arrange an appeal meeting without unreasonable delay, following the steps outlined above for the consultation meeting.

The appeal should be dealt with impartially and the person holding the appeal meeting should have sufficient authority to make a decision. Wherever possible, it should be handled by a manager who has not previously been involved in considering the request. The employer must inform the employee of their decision and should confirm the decision in writing without unreasonable delay, again taking into account the statutory two-month decision period. The decision should make clear what the employer has decided and why and a written record of the appeal meeting should be kept which provides an accurate reflection of the discussion that has taken place.

Allowing an employee to be accompanied

The Code notes that there is no statutory right to be accompanied at meetings held to discuss a flexible working request but says this is good practice and can be helpful in giving employees confidence to make requests and in supporting both parties to find a mutually agreeable solution. The employer should inform the employee prior to the meeting that they may request a companion.

If an employee asks to be accompanied and the request is reasonable, the employer should allow them to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union.

Whether a request to be accompanied is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or within a certain timeframe. However, an employee should provide enough time for the employer to deal with the companion's attendance at the meeting. Employees should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.

If the employee does not attend a meeting

The Code states that the employer's arrangements for meetings should provide a reasonable opportunity for the employee to attend. If the employer arranges a meeting and the employee fails to attend both the meeting and a rearranged meeting without a good reason, the employer may consider the request withdrawn. Where the employer considers a request withdrawn, they must inform the employee of this in writing.

Protection from detriment and dismissal

The Code also reminds employers that they must not subject an employee to any detriment or dismissal because the employee has:

• made or intends to make a flexible working request, or
• issued legal proceedings against the employer in relation to their right to request flexible working, or has stated that there are circumstances which could constitute a ground for them doing so.

What should employers being doing?

Employers need to update their flexible working policies to reflect the changes and build the Code’s best practice recommendations into their policies and procedures for handling requests. They should also train managers on the changes so they understand how they should be handling requests. If you would like your flexible working policy reviewed or to receive some training on dealing with requests, please get in touch.