New flexible working rules and new ACAS Code published

ACAS, the Advisory, Conciliation and Arbitration Service has published a survey reporting that 43% of employers and 70% of employees surveyed were unaware of the changes to the statutory flexible working regime which came into force this month on 6 April.

Nevertheless, employers should not make any assumptions - employees will eventually hear about the changes resulting no doubt in a rise in flexible working requests, particularly because it is now a day one right and employees can make up to two requests per year (rising from just one). There is still no right to work flexibly but resisting a flexible working request can be difficult, particularly where there is discrimination risk. 

This article considers the changes to the flexible working regime and analyses the new ACAS Code which has been further updated following a public consultation on the draft Code published last summer. 

Key new rights in force from 6 April 2024

1. Day one right: From 6 April all employees from the first day of their employment are eligible to make a request – the six months’ service requirement has been dropped. 
2. Removal of requirement to explain impact of request: Under the new rules, there is no longer any requirement for employees to explain what effect, if any, their flexible working request might have and how any adverse effects would be addressed. While this streamlines the application process for employees, it may pose challenges for employers in assessing the potential impact of flexible working arrangements on their business operations.
3. Increased number of requests: From 6 April, employees may make up to two flexible working requests within a 12-month period. Employers may therefore experience a higher volume of requests to manage. This influx may put additional strain on HR departments and line managers, demanding a well-structured approach to address each application fairly. An increased number of requests also enhances risks of grievances and discrimination claims. Granting flexible working arrangements to some employees but not others may create tensions within teams. Employers will need to implement transparent and fair decision-making processes to address any potential resentment or feelings of inequality among employees.
4. Reduced response time: Employers will be required to respond to flexible working requests within 2 months, a significant reduction from the current 3-month timeframe. While this shorter response period aims to expedite the process for employees, it may create pressure on employers to make timely decisions and potentially overlook essential considerations.
5. Mandatory consultation: Under the new rules there is a new requirement for employers to consult with employees on their flexible working requests before rejecting them. While there is no legal minimum standard of consultation, this requirement should encourage collaboration, particularly in light of the revised ACAS Code (see below). However, it may also lead to protracted discussions and negotiations, potentially causing disruptions to business operations and decision-making processes.

New statutory ACAS Code  

The new rights are accompanied by an amended Code of Practice on requests for flexible working which was published on 6 April 2024, together with new non-statutory guidance What flexible working is - Statutory flexible working requests. Tribunals must take the Code into account when deciding complaints by employees under the flexible working rules, if it appears relevant. Employers are therefore advised to follow the Code carefully when dealing with requests. 

Key aspects of the new statutory ACAS Code are as follows: 

• New foreword: encouraging a positive approach: The new Code highlights the mutual benefits of flexible working. It emphasizes a better work-life balance for employees and how an open approach to flexible working can improve diversity and address labour shortages for employers. Whilst acknowledging that not every type of flexible working will be suitable for every role and every organisation, it states that “the starting position should be to consider what may be possible” (inserted following consultation on the draft Code). This foreword sets the tone for a more positive and constructive attitude towards flexible working requests, encouraging meaningful dialogue and collaboration between employers and employees. The new Code contains examples of possible working arrangements. 
• Collaborative approach to consultation: Echoing the new statutory requirement to consult on a flexible working request, the updated Code seeks to encourage a collaborative approach during the consultation process. It suggests exploring alternatives together, ensuring that finding a viable solution becomes a shared responsibility. This approach complements the removal of the employee's requirement to explain the effect of their flexible working request. Following consultation on the draft Code, the new Code includes guidance on issues that would usually be appropriate to discuss in a consultation meeting (with more guidance in the non-statutory guidance).
• Strengthening good practice principles: The right to be accompanied to meetings considering flexible working requests and the right to appeal a rejection are strongly promoted as good practice by ACAS. Following consultation on the draft Code, the new Code emphasises that these are matters of good practice rather than legal obligations. The new Code expands the group of proposed meeting companions to include union representatives (allowing the same categories of companion as those that are allowed in discipline and grievance meetings) and recommends offering appeals proactively. Employers are encouraged to explain in writing how appeals can be raised and to handle them impartially, providing employees with a fair and transparent process. Following consultation on the draft Code, the new Code states that appeals should be handled by a different manager “wherever possible”, removing the original requirement that this only applied to larger organisations. 
• Transparency: The updated Code places emphasis on transparency throughout the process. Following consultation on the draft Code which supported ACAS’s approach for some sort of discussion even if the employer plans to accept the request, the new Code recommends that the written decision to accept the request should offer an “opportunity for a discussion” (rather than a formal meeting as originally proposed), but making it clear that the parties may mutually agree that a discussion is not needed. In addition , the new Code recommends that employers provide any additional information as is reasonable to help explain why a request has been rejected. This proactive approach aims to motivate employers to ensure well-founded decision-making, mitigating potential discrimination risks arising from opaque processes.
• Predictable working patterns: ACAS' revised Code originally proposed to address the right to request a predictable working pattern, clarifying how requests under the two regimes may interact. However, this has been removed from the final Code because the right to request a predictable working pattern is not expected to come into force until September 2024, at which point ACAS will reconsider whether to add an extra section to cover this point. 

What these changes mean for employers

Despite these progressive changes, it is important to remember that the right to request flexible working does not guarantee the automatic approval of the request. Employers will still have the discretion to assess requests based on business needs and operational feasibility. The eight grounds on which employers may refuse a request remain unchanged, providing a framework for legitimate reasons to reject requests while ensuring fairness and compliance with the law. 

While the new rules present certain risks for employers, the Code's emphasis on positive dialogue, collaboration, and transparency will help create a supportive work environment, promoting employee well-being, and driving organisational success. 

Next steps 

To navigate the risks, employers must prepare by updating internal policies, establishing clear decision-making processes, and allocating resources efficiently. By aligning internal policies with the forthcoming new rules and embracing the principles outlined in the new ACAS Code, businesses will be able to navigate the changing landscape of flexible working, securing a competitive edge and fostering a more engaged, productive and agile workforce. 

Clyde & Co is here to assist you in adapting to these changes and ensuring compliance with the reforms. Please speak to a member of the employment team or your usual Clyde & Co contact if you have any questions or would like advice on flexible working requests.

Code of Practice on requests for flexible working | Acas

What flexible working is - Statutory flexible working requests | Acas

Acas response to consultation on draft Code of Practice on handling requests for flexible working | Acas