UK: final version of Acas flexible working code published

Update 29 March 2024: statutory instruments have now been made bringing the revised statutory code and all the changes to the right to request flexible working into force on 6 April 2024.

Acas has published a revised version of its updated statutory code on dealing with flexible work requests, for parliamentary approval. It is expected to be brought into force in April 2024 along with the changes to the flexible working request regime (discussed here).  A lot of the changes from the initial draft code issued for consultation last year are merely reordering of the text;  changes to note include:

• it is now made clear that the requirement to consult the employee before making a decision on a flexible work request does not apply if the employer is going to agree the request in full. The reference to a pre-decision meeting being good practice for agreed requests has been replaced with a requirement to offer the employee the opportunity for a discussion to clarify to clarify any further information that may be helpful in implementing the agreed arrangement, potentially including setting dates to review how the arrangements are working.  The discussion should be recorded in writing if the employee takes up the offer;  a discussion does not need to take place if both parties agree it is unnecessary;
• the code is now more explicit that, if the employer is unable to agree a request in full, it should discuss potential modifications with the employee (the initial version simply noted that it might be possible to agree a request with modifications); a reference to the possibility of a trial period to assess feasibility has also been added;
• the code now expressly states that there is no statutory right for the employee to appeal a decision, nor to be accompanied, but that both are good practice; it also now reminds employers that an accurate written record of any appeal meeting should be made;
• the code now recommends that a different manager should be appointed to handle an appeal 'wherever possible' - the initial draft limited this to 'larger organisations';
• the code no longer suggests that if a request relates to adjustments for disability it should be dealt with separately; instead the code just notes that the two legal obligations are separate;
• the sections on how the flexible work regime will interact with the right to request a predictable work pattern have been removed (reflecting that the latter will now not come into force at the same time – they are not expected until Autumn 2024).

ACAS will also produce non-statutory guidance to accompany the code and publish a full response to the consultation.

The statutory regime for flexible work requests includes a general obligation to deal with a statutory request 'in a reasonable manner'; tribunals are required to take the statutory code into account where relevant, which will include when considering what amounts to a reasonable manner in a particular case.

Employers will now need to plan updating their flexible work request policies in time for 6 April 2024.  Of course it has always been best practice to properly consider flexible working requests (even if not compliant with the statutory regime) to avoid potential discrimination claims (for which compensation is uncapped, and therefore potentially much larger than the 8 weeks' capped pay that can be awarded under the flexible work request regime).  The changes to the right to request (allowing requests from day one of employment, and two requests a year) could mean an increase in requests and therefore an increased risk of facing linked discrimination claims (for example, refusals of requests to work from home could in some cases be indirect sex, disability or age discrimination).