Twenty years on from the introduction of the flexible working regime, Acas is looking again at its statutory Code of Practice, last tweaked in 2014 and of course already largely overtaken since then by the seismic shift in working practices caused by ever-more capable IT, the pandemic lockdowns and industrial discord on the railways. This is the version of the Code (with some new guidance to match also promised) which will go with the revisions to the statutory flexible working scheme to be made by the Employment Relations (Flexible Working) Act, and secondary legislation probably next year. Those changes are likely to include (i) making the ability to request flexible working a Day One right (so abandoning the current six-month minimum service requirement); and (ii) removing the obligation on the employee to consider the potential impact on the employer of his/her desired work pattern. Neither of these is a remotely good idea for reasons you can find here. The Act will also make it a pre-requisite of rejecting a flexible working application that there is some unspecified level of prior consultation with the employee. This adds little of practical significance to the existing law, since it is already very unlikely that a rejection would be deemed properly considered without that.
The proposed new Code offers no help with either of those but does make other changes to what went before. These changes may be small, but at least they are also unnecessary though (on the upside, they do lack the potential for active harm of the two measures above). The Code says that it aims “to encourage a more positive approach to flexible working through . . . an emphasis on fostering an environment in which requests are not rejected by default without open-minded consideration and meaningful dialogue“. Lovely, obviously, but there is no evidence referred to within the consultation document that any material number of employers do actually treat flexible working applications in that way and in any case, the existing law is entirely adequate to catch them if they do.
First, there is a change in relation to who should be allowed to accompany an employee in any meeting to discuss his/her flexible working request, previously limited to a co-worker and now extended to union representation. No sensible employer would take the point anyway.
Next, encouragement to employers to give the employee a reasonable degree of detail as to the grounds on which his/her request is being rejected. The requirement to give more than just the relevant permitted reason for saying no under Section 80H Employment Rights Act has existed in guidance from the very beginning of the flexible working regime, so this is very much a question of degree. Provision of the detail of the employer’s thinking is obviously sensible from a number of perspectives. Seeing its “workings-out” should reassure the employee that his/her application has been given a proper airing. That discipline also obliges the employer to have a proper think about the request – nothing focuses your mind on the viability of a flexible working application so much as having to commit to writing your reasons for turning it down. The employer needs to bear in mind also that a reason which it does not mention at this stage is going to be harder to rely on later. The consultation document does not answer the key question of how much detail is required, but the only practical answer is the same as when setting out a disciplinary or redundancy proposal to an employee – the same level of detail and explanation as you would want if it were you on the receiving end. The information provided should leave no obvious question unanswered.
Third, the provision of a right of appeal against the rejection of a flexible working request (even though this is not a requirement of the new Act). Both the original consideration and the appeal need to have taken place within two months from the request, which is sensible enough, but then you come to the question of who hears it. “Where possible it should be handled by a manager who has not previously been involved in considering the request” states the draft Code. The potential problem here is just how many managers you will have who are qualified to determine whether the requested arrangement will work or not for that employee seeking that arrangement in respect of that job in that department. Ideally the employer will want the decision made by someone on the ground who from experience or authority can make that judgement for their own team without relying on the assumptions and platitudes which may be offered by someone less connected. Pushing the appeal off to a previously uninvolved manager creates the obvious risk for the employer that the key decisions are made by people without adequate visibility of the facts and who will not have to live with the managerial and operational consequences of allowing a request which should have been refused. If the decision can realistically only be made by one manager within the business, and that reality can be convincingly explained, then it would have to be possible to have the appeal heard by that person even if he/she had made the initial refusal decision.
If you have comments for the consultation, these should be submitted to the Department for Business and Trade by 6 September.