New code of practice on flexible working

Employees in the UK who have worked for their employer for 26 weeks or more will soon have the right to ask for flexible working conditions. Legislation that changes the rules on flexible working is currently in its final parliamentary stages. It obliges employers to consider requests for flexible working in a ‘reasonable manner’. Ahead of the changes, the Advisory, Conciliation and Arbitration Service has published a draft code of practice and broader good practice guidance.

Background

The Children and Families Bill, expected to become law in the UK shortly, contains provisions that extend the right to request flexible working to all employees. At present, this right applies only to parents and carers in certain circumstances.

The UK government conducted a public consultation on reforming the law in this area in 2011 (UK1106029I) and set out its response (313 KB PDF) to the results in November 2012 (UK1212039I). This included asking the Advisory, Conciliation and Arbitration Service (Acas) to draft a code of practice to help businesses manage the amended provisions on flexible working, which it published in January 2014.

Right to request flexible working extended

The new bill removes the requirement that an employee must have parental or caring responsibility to be eligible to ask their employer to change their hours and location of work. As a result, all employees who have the necessary period of service with their employer – currently 26 weeks – will have the right to request flexible working.

The bill also removes employers’ obligation to follow a statutory procedure when considering flexible working requests. Instead, a duty is placed on employers to consider requests in a ‘reasonable manner’.

Valid reasons for refusing the request must be business-related and are set out in the new law. These are:

  • the burden of additional costs;
  • an inability to reorganise work among existing staff;
  • an inability to recruit additional staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • detrimental effect on ability to meet customer demand;
  • insufficient work for the periods the employee proposes to work;
  • planned structural change to the business.

There is a requirement on employers to notify the employee of their decision within three months of the application. This period can be extended by agreement between the employer and employee.

An employee cannot make a complaint to an employment tribunal until a final decision has been made by their employer, and must exhaust any appeal process offered by the employer before making a complaint.

Code of practice

In 2013, to help employers prepare for these changes, Acas consulted on and published a draft code of practice to explain what the minimum requirements are for considering a request in a reasonable manner. The consultation ran for 12 weeks between February 2013 and May 2013.

On 22 January 2014, Acas published its response (80.3 KB PDF) to the consultation exercise, including a revised draft of the code of practice that takes account of comments received during the consultation.

The revised draft says employers should:

  • discuss the request for flexible working with the employee, wherever possible in private;
  • consider the request carefully ‘looking at the benefits of the requested changes in working conditions for the employee and [the] business, and weighing these against any adverse business impact of implementing the changes’. In considering the request, employers must not discriminate unlawfully against the employee;
  • inform the employee as soon as possible of their decision, in writing. Where employers accept the employee’s request, or accept it with modifications, they should discuss with the employee how and when the changes might best be implemented;
  • where the decision is to reject the request, allow the employee to appeal the decision;
  • deal with requests promptly.

Good practice guidance

Acas also published broader ‘good practice’ advice in the form of an accompanying Acas guide (163 KB PDF). This picks up on a number of issues raised by employers and unions in the consultation exercise, including the factors to consider when examining requests. It also provides advice on handling employee requests fairly, avoiding discrimination and dealing with appeals.

Next steps

  • code of practice will be issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 and will be subject to parliamentary approval. The provisions of the code are intended to inform employers of their responsibilities and will be taken into account by employment tribunals when considering relevant cases.

After the Children and Families Bill receives royal assent, the draft code will lie before parliament for 40 days. After this, subject to parliamentary scrutiny, the code can be brought into effect on a date to be specified by ministers.

The government’s intention was to bring relevant sections of the bill and the new code into effect in April 2014. It is currently unclear whether delays in the legislative process will mean a later commencement date.

Mark Hall, IRRU, Warwick Business School

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