ACAS have launched a consultation on a draft statutory code of practice designed to assist employers in dealing with the practicalities of the new extended right to request flexible working.

Under the Children and Families Bill, from 2014, the right to request flexible working will be extended to all employees with at least 26 weeks' continuous employment.  The current statutory procedure will be replaced with a more flexible process, under which employers are simply under a duty to consider requests in a reasonable manner.  The consultation, which was launched on 25 February 2013, is open until 20 May 2013.

The draft statutory code of practice will be accompanied by non-statutory best practice guidance, setting out practical examples of how to deal with requests under a ‘reasonable’ process.  The draft code includes the following key principles:

  • Set up a meeting - after receiving a written flexible working request, employers should set up a meeting to discuss the request as soon as possible (although no meeting will be required if approving the request). The employee should be informed about their right to be accompanied by a work colleague.
  • Considering the request -
    • there should be a presumption that the request will be granted unless there is a business reason for not doing so;
    • employers should carefully weigh up the benefits of the changes (for the employee and the business) against the costs of implementing them; and
    • employers should not discriminate against the employee when considering their request.
  • Accepting a request - if the employee’s request is accepted, either in full or subject to modifications, a discussion should take place with the employee about implementation.
  • Rejecting a request - employers will still only be able to reject a request for flexible working based on one of the statutory grounds (as in the current regime): •the burden of additional costs;
    • detrimental effect on ability to meet customer demand;
    • inability to re-organise work among existing staff;
    • inability to recruit additional staff;
    • detrimental impact on quality;
    • detrimental impact on performance;
    • insufficiency of work during the periods the employee proposes to work; and
    • planned structural changes.
  • Appeals - employees should be allowed to appeal against a decision to reject their request (which may reveal new information or could flag up a failure to follow a reasonable procedure).
  • General requirement to deal with requests promptly - there will be a three month window to consider and notify employees of the decision in respect of their request, unless an extension is agreed.  The three month time limit also applies from receipt of any appeal.

Impact on Employers:

It does appear that, under the “principles based” code of practice, employers will be provided greater flexibility to develop their own procedures to deal with requests, provided the minimum requirements are met (namely that the procedures are reasonable, and are completed within the three month time limit).

In particular, this should allow employers sufficient time to consider the practicalities of implementing any proposed change, for example discussing this with others within a team who may be affected by the change.  However, employers will still be constrained by the statutory reasons for rejecting any claims.

In the run up to the extended right to request flexible working being introduced in 2014, employers should consider developing their own procedure for dealing with requests and may wish to consider providing training for managers to ensure requests are dealt with consistently across the business.