As we have previously reported, changes to the law on the right to request flexible working will come into force from 6 April 2024.  These changes will make the right to request flexible working a "day one" right, removing the current 26 week qualifying period.  There will also be changes to the statutory flexible working request procedure.  The new regime removes the requirement for an employee to explain what the effect of a flexible working arrangement would be on the employer or how that might be dealt with.  It also gives:

• employees the right to make two requests within any 12 month period;
• employers 2 months to respond; and
• employees the right to be consulted by the employer before their employer reaches a decision.

The draft Code addresses how an employee makes a request for flexible working and how an employer should communicate its decision.  It also gives some more detail on the new requirement on the employer to consult with the employee in circumstances where it decides not to agree to the employee's written request in full:

• In such cases, the Code states that an employer should invite the employee to a consultation meeting to discuss the request. A consultation meeting can help make sure that all relevant information is understood before a decision is made. It can also make clear whether a request may relate to a reasonable adjustment for an employee’s disability.

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

• 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. They should discuss, for example, any potential modifications to the original request, or any alternative flexible working options, that may be available and suitable for both sides. It may also be helpful to discuss whether a trial period may be appropriate to assess the feasibility of an arrangement.

While not legally required, the Code also addresses good practice points such as whether to allow employees to appeal against an employer’s decision, and in what circumstances an employee should be permitted to be accompanied to a meeting.

What does this mean for employers?

The aim of the Code is to provide employers and employees with a clear explanation of the law on the right to request flexible working, alongside good practice advice on handling requests in a reasonable manner.

If approved the Code is expected to come into effect in April 2024.  Acas has stated that it will publish a full response to the consultation before the Code comes into effect and that it will produce non-statutory guidance to accompany the Code.

Before April employers should ensure their flexible working policy is updated and that managers know what they need to do to “consult” with employees.

The draft Code can be seen here