Acas has now issued its draft Code of Practice on “Handling requests in a reasonable manner to work flexibly” (sic). This anticipates the coming into force on 30 June this year of a general eligibility to request flexible working and the replacement of the old rigid procedures with a blanket obligation on the employer to handle those requests “in a reasonable manner”.
The statute contains no clue as to what “a reasonable manner” might look like, hence the Code. Unfortunately this is so sparse as to be next best thing to useless, just two pages of large-font print. This tells the employer that it “should consider the request carefully“, though at the same time says that references to “should” mean that it is not a legal requirement. However, since you cannot realistically handle a requirement reasonably without even considering it, that advice seems not just unnecessary but wrong – you must consider such requests and be seen to do so in an open-minded way. I still have the scars from an early flexible working claim under the old regime in which the commendable frankness of my respondent witness led him to describe his immediate reaction to a male employee’s flexible working request as “Nice try, Sunshine”. In consequence, even though the request was so impracticable as to border on the actively mischievous, we lost.
The Code comes accompanied by Guidance, a more significant 18 pages containing some actually quite useful ideas for employers, together with an utterly deplorable volume of grammatical and punctuation errors. Maybe there was simply not room enough for these in the Code.
The Guidance includes suggestions for the content of a flexible working policy, and in particular that employees should feel free to request (and employers to grant) temporary and/or trial arrangements, perhaps to cope with a bereavement or to take a study course. This represents a welcome departure from the assumption under the old regime that a flexible working alteration to terms of employment was permanent.
A bit of a curveball appears almost as a throwaway line in the Guidance, which is not then expanded on in the text or the Code. Among matters which the employer might consider, it says, is “the possible impact [of granting a request] upon other employees’ requests for flexible working“. This strikes me as misguided if it refers either to requests already made and resolved or those yet to be made. If it is a reference to two or more requests made contemporaneously and outstanding at the same time, then of course one might make the other viable and everyone will live happily ever after. In the much more likely scenario that one request makes the other non-viable, then you are into a whole different set of issues.
The Guidance states that “Requests should be considered in the order in which they are received” which suggests that the earlier of two incompatible flexible arrangements should generally get the nod, with the second being decided against the changed factual context which that creates. Brutal, but logical and clear. In the very next paragraph, however, is the injunction that where employers receive multiple requests, they should not make value judgements about “the most deserving request”. There should be no debate about my childcare needs trumping your religious observances and both walking all over a third party’s wish to have a work:life balance which is something more than just being at work whilst still alive. The scope for discrimination claims if you go down that road would be colossal.
By inference, each application must be considered so far as possible without any reference to the circumstances of the individual applicant, the employer focusing exclusively on the impact of the proposed arrangements on the business. If that is done, then you should never reach the surreal position suggested by the Guidance where making a reasoned decision is impossible and it becomes appropriate “to consider some form of random selection…if unable to distinguish between all the requests”. No. Just no.
