Navigating workplace dynamics demands a grasp of the legal framework governing employee-employer relations. The recent release of the Advisory, Conciliation and Arbitration Service (ACAS) Draft Code of Practice on Flexible Working is a pivotal moment in empowering employees to seek work arrangements that align with their needs. It marks a significant stride in recognising the need for a more adaptable and employee-centric work environment. As the founder of Your HR Friend Ltd, I am here to delve deeper into the intricacies of this draft code, offering a comprehensive guide for our audience seeking in-depth knowledge and understanding.
Issued under sections 199 and 200 of the Trade Union and Labour Relations (Consolidation) Act 1992, the ACAS Draft Code replaces its 2014 predecessor. Let's embark on a detailed exploration of the key components that shape this code and its implications for both employers and employees.
1. Statutory Right to Request Flexible Working- A Day One Right 🕊️
At the core of the ACAS Code is the reinforcement of every employee's statutory right to request flexible working from the onset of their employment journey. 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
- 🎬 the date the employee would like the change to come into effect
- 📅 if and when the employee has made a previous request for flexible working to the employer
Employers should make clear to their employees that the above information must be included in any statutory request for flexible working.
2. Employer Responsibilities Unveiled
This code meticulously outlines employer responsibilities. Employers must agree to a flexible working request unless there is a genuine business reason not to. Employers must handle each request reasonably and assess the potential impact of the proposed changes on both the employee and the organisation. A decision to reject a request must be substantiated by one of the 8 genuine business reasons outlined in the Employment Rights Act 1996:
- 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
- planned structural changes to the employer's business
3. Anti-Discrimination Measures
The ACAS Draft Code places a strong emphasis on anti-discrimination measures, ensuring that employers do not unlawfully discriminate against employees based on protected characteristics as defined by the Equality Act 2010. The protected characteristics are:
- 🧓 Age
- ♿ Disability
- 🌈 Gender reassignment
- 💍 Marriage and civil partnership
- 🤰 Pregnancy and maternity
- 🌐 Race
- ☪️ Religion or belief
- ⚖️ Sex
- 🏳️🌈 Sexual orientation
♿💙 The code also mandates separate consideration for reasonable adjustments for disabilities, aligning with legal obligations under the Equality Act 2010. If an employee seeks a reasonable adjustment for their disability through a request for flexible working, the employer must consider this in line with its legal obligations under the Equality Act 2010. Employers must make reasonable adjustments to remove any disadvantage related to a person’s disability.
4. Navigating the Consultation Process
In the intricate dance of workplace adjustments, the consultation process emerges as a pivotal phase. Employers are called to engage in meaningful dialogues with their employees before casting decisions in stone. This involves a prompt and confidential consultation meeting, a platform to dissect potential impacts, benefits, and the practical considerations of the requested changes. Rejecting a request without prior consultation is a line employers must not cross. Unless the employer opts to wholeheartedly accept the employee's written request, a consultation session must precede any final verdict.
5. Decision Communication Strategies
Communication is key, and the ACAS Code reinforces this notion. Employers bear the responsibility to convey decisions to employees without unreasonable delay, with clear written communication, adhering to the statutory two-month period for request resolution, including potential appeals. In cases where a request is approved, the written decision should outline the details of the agreed-upon arrangement and offer an opportunity for further discussion if needed.
If the employer rejects the employee’s request, the written
decision should clearly explain the business reason(s). It should also set out any additional information
which is reasonable to help explain the decision.
6. Appeals Process
While the code does not impose a statutory right of appeal, it encourages employers to adopt this good practice. The appeals process, conducted impartially and substantiated by a written record, becomes the linchpin of transparency and fairness in decision-making.
If an employee chooses to appeal the decision, putting pen to paper to articulate the grounds is crucial. Whether there's new information to consider or a perception that the employer mishandled the initial request, the reasons should be laid out clearly.
If the employer receives an appeal, they should arrange an appeal meeting without unreasonable delay. The appeal should be dealt with impartially. The individual conducting the meeting should wield sufficient authority, preferably devoid of prior involvement in the original request assessment.
Once the employer has made a decision about the appeal, they must inform the employee of that decision in writing without unreasonable delay, taking into account the statutory two-month period for deciding requests. The written communication should leave no room for ambiguity, offering a clear exposition of the decision and the reasoning behind it. A meticulous record of the appeal meeting ensures an accurate reflection of the discussion that transpired.
7. Allowing an employee to be accompanied
Though no statutory right of accompaniment exists for meetings discussing flexible working requests, embracing this as good practice is encouraged through this Code. Granting employees the opportunity to be accompanied holds value in fostering confidence in request submissions and supporting both parties in reaching mutually agreeable solutions.
Should an employee express the desire to be accompanied at any meeting discussing their flexible working request, and the request for accompaniment is reasonable, employers should extend the courtesy. This could manifest as allowing a fellow worker, a trade union representative, or an official employed by a trade union to accompany the employee. Advance notification to the employee about the option to request a companion sets the tone for a collaborative and considerate process.
8. Attendance Etiquette
The employer's arrangements for a meeting should provide a
reasonable opportunity for the employee to attend.
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, employers may contemplate deeming the request withdrawn. Should such a determination be made, it is imperative to communicate this decision in writing to the employee.
9. Protection from Detriment and Dismissal
The ACAS Draft Code introduces robust protective measures, shielding employees from detrimental actions or dismissals based on their pursuit of flexible working arrangements, from day one. This shield extends to cover all requests, including appeals, ensuring that decisions are reached and communicated within a two-month window from the request initiation. While an extension can be agreed upon by mutual consent, employers must duly confirm this in writing to the employee.
You deserve to work securely and succeed unimpeded by unfair barriers. In such challenging times, Your HR Friend extends a steadfast hand as your confidante and ally.
We stands ready to offer bespoke counsel, guiding you on the meticulous documentation and construction of a compelling case. With our tailored coaching, you can navigate the intricate nuances of the situation, secure in the knowledge that your rights will be safeguarded at every turn.
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New Code of Practice on Requests for Flexible Working