The extension of the right to request flexible working to all employees with six months’ employment, and the replacement of the current statutory procedure with a duty to consider requests in a reasonable manner, has been postponed from its original implementation date of April 2014. No new date has been announced as yet. The changes will be introduced by the Children and Families Bill and the period for this to receive Royal Assent has been extended to 21 March 2014.
Acas has published its response to the consultation on the new regime including a final draft Code of Practice for Handling Requests to Work Flexibly in a Reasonable Manner, available here. The final draft remains “principles-based”. The original draft’s proposal that employers should approach requests from the presumption that they would be granted, in the absence of a business reason for not doing so, has been removed. The draft Code states that it is good practice to allow an appeal and to enable employees to be accompanied by a work colleague.
Acas has also published a good practice guide to supplement the code, available here. Of particular interest to employers will be the section on handling competing requests, at pages 15 to 17. The guidance states that employers are not required to make value judgements about the most deserving request. It does not expressly note that this might be subject to the positive duty to make reasonable adjustments for a disabled employee, though this is referred to earlier in the guidance.
If all requests cannot be accommodated, the guidance suggests that employers discuss with the employees to see if there is room for adjustment or compromise and, if not, that the employer could get the employees’ agreement to some form of random selection such as drawing names from a hat; ideally the approach in such cases would be set out in a flexible working policy. The guidance also notes that, if an employer is unable to accommodate a request due to the number of other employees already working flexibly, it would be good practice to consider calling for volunteers working flexibly to change their contracts back, in order to create capacity for granting new requests.