Code of Practice on requests for flexible working (draft) | Acas

About this draft

Important: This Code of Practice is in draft form for public consultation.

Foreword

Note: the final Code will include a Foreword similar in style to that accompanying the current Code.

The Code of Practice

Introduction

1. This Code provides guidance to employers and employees on the statutory right to request flexible working as set out in the Employment Rights Act 1996 (as amended) and regulations made under it.

2. It explains the legal requirements employers must follow when handling and deciding flexible working requests. It also explains good employment practice that employers should follow.

3. The Employment Rights Act 1996 defines a statutory request as a request for a change to an employee's terms and conditions relating to their hours, times or place of work.

4. Examples of flexible working include, but are not limited to:

part-time working
homeworking
hybrid working
flexitime
job sharing
compressed hours
annualised hours
term-time working
team-based rostering
mutually agreed set shift patterns

Good practice for handling flexible working requests

5. When dealing with flexible working requests, employers and employees should:

consider the request using relevant evidence, and share information that helps both sides understand the request and any practical impact
be open to adapting where this could help the arrangement work in practice
work together to find a solution, discussing any concerns and solving problems
make sure the process is transparent and consistent

These principles are explained in paragraphs 48 to 59. How they are applied in practice will depend on the circumstances of the request.

Making a statutory request for flexible working

6. Every employee has a statutory right to request flexible working. This right applies from the first day of employment.

7. A request must be in writing and state that it is a statutory request for flexible working. It must include:

the date of the request
the change the employee is requesting to the terms and conditions of their employment in relation to their hours, times or place of work
the date the employee would like the change to come into effect
if and when the employee has made a previous request for flexible working to the employer

8. Employers should make clear to their employees that the above information must be included in any statutory request for flexible working.

9. An employee may make 2 statutory requests for flexible working within any 12-month period.

10. There is no legal requirement for the employee to explain what effect the requested arrangement may have on the employer. However, sharing information about what they are trying to achieve may help the employer understand the request.

11. An employee may only have one live statutory request for flexible working with the same employer at any one time.

12. Once an employee makes a request, it remains live until any of the following happens:

the employer makes a decision about the request, including any appeal where one is offered
the employee withdraws the request
the employer and employee mutually agree an outcome
the statutory 2-month decision period ends, unless the employer and employee have agreed to extend it
any agreed extension to the decision period ends

13. Before making a final decision, the employer and employee may agree to extend the decision period to allow a trial of the proposed flexible working arrangement. They should agree in advance the length of the trial, how it will be reviewed and what will happen when the trial ends.

Deciding requests within the statutory decision period

14. All requests, including any appeals, must be decided and communicated to the employee within a period of 2 months from when the employer first receives the request. The employer and employee may agree to extend this period. If an extension is agreed, the employer should confirm this in writing to the employee.

Considering a request for flexible working

15. Employers must handle every request in a reasonable manner. This should include carefully assessing the effect of the requested change on both the employer and the employee, such as the potential benefits or other impacts of accepting or rejecting it.

16. An employer may reject a request only for one or more of the following business reasons set out in the Employment Rights Act 1996:

the burden of additional costs
an inability to reorganise work amongst existing staff
an inability to recruit additional staff
a detrimental impact on quality
a detrimental impact on performance
a detrimental effect on ability to meet customer demand
insufficient work available for the periods the employee proposes to work
planned structural changes to the employer's business

17. Unless the employer agrees to the employee's written request in full, they must consult with the employee. Detail on how to consult the employee is set out in paragraphs 27 to 44.

18. Employers must agree to a flexible working request unless both of the following apply:

there is a genuine business reason not to agree it
it is reasonable to refuse the request for that reason

Details on how to reach a reasonable decision are set out in paragraphs 48 to 59.

19. When dealing with a request, employers must not discriminate unlawfully against the employee. This includes how they handle any information disclosed as part of the request in relation to a protected characteristic under the Equality Act 2010.

20. The protected characteristics are:

age
disability
gender reassignment
marriage and civil partnership
pregnancy and maternity
race
religion or belief
sex
sexual orientation

Protection from detriment and dismissal

21. An employer must not subject an employee to any detriment or dismissal because of any of the following:

the employee has made or intends to make a request for flexible working
the employee has issued legal proceedings against the employer in relation to their right to request flexible working, or has stated that there are circumstances which could be a ground for them doing so

Requests that may involve reasonable adjustments

22. The statutory right to request flexible working is separate from an employer's duty to make reasonable adjustments under the Equality Act 2010. This Code does not remove, reduce or replace that duty.

23. Where a disabled worker experiences a disadvantage, the employer may be under a duty to take reasonable steps to remove or reduce that disadvantage. This can include making changes to working arrangements.

24. When an employer receives a flexible working request, they should consider whether it relates to a disability and keep this under review while handling the request. If the request does relate to a disability, the employer must consider making reasonable adjustments to remove or reduce the disadvantage related to someone's disability. The employer should discuss with the worker how the request will be handled.

25. Employers must also consider if they need to make reasonable adjustments to how a flexible working request is handled. This may include changing how a meeting is held, allowing additional support, providing information in an accessible format, or adapting how the employee communicates with the employer.

26. For further guidance on the duty to make reasonable adjustments, employers and employees should refer to the Equality and Human Rights Commission's (EHRC) statutory Code of Practice on Employment and related guidance.

Consulting the employee

27. Unless the employer agrees to the employee's written request in full, they must consult with the employee.

28. Where consultation is required, the employer must invite the employee to a meeting before making a decision about the request. The invitation must:

be in writing
state that the purpose of the meeting is to discuss the employee's flexible working request
specify the date and time of the meeting

29. The purpose of the meeting is to:

consider the feasibility of the requested arrangement as made and address challenges where possible
explore any suitable alternative arrangements if the requested arrangement is not feasible

30. The employer must carry out the meeting with a view to reaching an agreement with the employee.

31. The meeting must give the employer and employee an opportunity to:

make sure the request is understood
discuss any difficulties in accommodating it
consider the employee's response
explore possible solutions
discuss whether a modification, alternative arrangement, different start date or trial period could help reach agreement

Before the meeting

32. The employer must send the written invitation a fair and reasonable amount of time before the meeting takes place. This should give both sides enough time to prepare for the discussion.

33. The employer should use an appropriate form of written communication. This could be the form of communication usually used in the organisation, such as an email, calendar invitation, text message or another written communication.

34. The invitation should not state or imply that the employer has already reached a final decision about the request.

35. Employers should take account of any particular urgency or requested start date when arranging consultation and making a decision. For example, an employee may need a timely decision because of a change in caring responsibilities, health or other circumstances.

36. The meeting should be held privately. It should take place in person, by video call, or, where agreeable, by phone.

During the meeting

37. The person attending on behalf of the employer should be able to:

discuss the request meaningfully
consider the employee's response
explore possible ways to reach agreement
wherever possible, make a decision about the request

They do not need to be the person who set the employer's policy on flexible working, but the employer must make sure the meeting is carried out with a view to reaching agreement.

38. Employers should approach discussions in a way that allows employees to raise any relevant circumstances if they wish to do so. This includes discussing whether the request relates to a disability and whether the requested working arrangement may be needed as a reasonable adjustment under the Equality Act 2010.

39. The employer must clearly explain any challenges they have identified in accommodating the request. They must explain why they think that it would not be feasible to accommodate the request, referring to the relevant statutory business reason or reasons. They must discuss the employee's response and whether the challenges can be addressed so that the request can be agreed as made.

After the meeting

40. After the consultation meeting, the employer must provide the employee with a written summary of the meeting.

41. The written summary should be sufficiently clear and must include:

the key points discussed at the meeting
any actions agreed by the employer or employee

42. If the employer has not reached a decision, the written summary must explain the next steps, including when the employer expects to make its decision.

43. The employer should provide the written summary without unreasonable delay after the meeting. This will help both sides understand what was discussed and complete any agreed actions within the statutory decision period.

44. Once the employer has made its decision, they must notify the employee of the final decision in writing. The employer may provide the final decision with the written meeting summary or send it separately. If they are combined, the communication must include all the information required for both the meeting summary and the final decision. The full requirements for communicating the employer's final decision are set out in paragraphs 60 to 70.

Multiple requests

45. In some situations, the employer might need to think about the combined effect of flexible working requests in the relevant team or area. The employer must still assess each case on its merits, following the law and good practice set out in this Code.

46. Where this is the case, an employer may find it useful to discuss how existing arrangements are working when considering a new request. For example, the employer could talk to other employees about voluntarily agreeing updates or changes to their flexible working arrangements, which might enable a request subsequently submitted by another employee. Employers should respect the fact that an employee's reasons for needing flexible working may be private.

47. Existing statutory flexible working arrangements normally form part of an employee's contract. So, the employer should agree any changes with the employee.

Making a reasonable decision about a request

48. An employer must accept a request unless one or more of the 8 statutory business reasons outlined at paragraph 16 apply, and it is reasonable to refuse it for that reason or reasons.

49. To help make a reasonable decision, employers should apply the following principles on:

reaching decisions based on evidence
adapting to enable the request
finding a solution
transparency and consistency

50. How employers put these principles into practice will vary depending on the circumstances, including the size, available resources and operational needs of the organisation.

Reaching decisions based on evidence

51. Employers should use evidence to make a decision about a request. Employers should be able to explain what evidence they used, and why this supported their decision.

52. Examples of how the employer could find and use evidence include:

reviewing relevant workforce, service delivery, customer or other data
looking at comparable situations in the organisation or elsewhere
speaking to managers, staff representatives and team members about how the arrangement could work
using risk assessments and other tools to check assumptions

Adapting to enable the request

53. The employer should look at how it could make reasonable changes to prevent, manage or reduce any of the impacts set out in the business reasons that it considers may apply.

54. Steps an employer could take to adapt to enable a request include:

adjusting work distribution or work patterns
using technology to support different working arrangements
considering whether a different start date, modification or alternative arrangement would work
examining if costs are one-off or ongoing

Finding solutions together

55. If the employer has concerns about the request, they should work with the employee, their manager and any representatives involved to find solutions. Everyone should try to solve problems before escalating matters.

56. Examples of how the employer can work with the employee to find solutions include:

asking the employee what they are trying to achieve through the request
agreeing whether a trial period could be used before a final decision is made, or whether a time-limited arrangement may be appropriate
consulting with employees and their representatives to explore if work can be carried out in a different way, time or place

Transparency and consistency

57. The employer should explain the impact they believe the requested arrangement would have. They should explain 2 things:

how that impact would arise in practice
why that impact is significant enough to justify refusing the request

58. Employers should explain the process to the employee, and how they will make their decision.

59. Relevant examples of how employers can act transparently and consistently could include:

having a written flexible working policy that covers how employees can make requests, how requests will be handled, and how decisions will be made
designing policies and processes in consultation with employees and their representatives
sharing information about the organisation's operations and the possible impact of the proposed arrangement
allowing reasonable requests to be accompanied at meetings, in line with paragraphs 71 to 73

Communicating the final decision about a request

60. Once the employer has made a final decision about the request, they must notify the employee. They must do this in writing without unreasonable delay. They must take account of the statutory 2-month decision period, including any appeal.

61. The final decision may be sent with the written summary of the consultation meeting or separately. If the documents are combined, the communication must contain all the information required for both the meeting summary and the final decision.

If the employer agrees to the request

62. Where the employer accepts the request as made, or the employer and employee agree a modification or alternative arrangement, the final decision must state:

the arrangement that has been agreed
the date on which it will take effect

63. If the employer accepts a statutory flexible working request, the agreed change becomes part of the employee's terms and conditions of employment from the agreed date. The employer must confirm any resulting change to the written particulars of employment in writing within the applicable statutory period.

64. The employer and employee may agree that the arrangement will be temporary or will apply for a specified period. Otherwise, an employer wishing to change the agreed arrangement subsequently should follow the usual process for changing contractual terms. This includes consulting the employee and seeking their agreement.

65. The written decision should offer the employee an opportunity for a discussion to clarify any further information that may help put the agreed arrangement in place. This might include, for example, agreeing dates to review how the arrangement is working.

66. If a further discussion takes place, the employer should keep a brief written note of any additional points agreed. The employer and employee may agree that a further discussion is not needed.

If the employer refuses the request

67. Where the employer refuses the request, the final decision must:

state the statutory business reason or reasons relied on
explain why that reason or those reasons apply
explain why the employer considers it reasonable to refuse the request on that basis
state whether the request is refused, or whether an alternative arrangement has been agreed

This must be done in writing.

68. The explanation should be detailed enough to help the employee understand the employer's decision, including the information and other factors it was based on.

69. The employer should also keep a record of the information and considerations relied on when making the decision. This may be relevant if the decision is later considered by an employment tribunal.

70. Employers should process and store information disclosed as part of a request in accordance with data protection law and applicable organisational policies. Information explaining the reason for a request may constitute special category personal data. Employers should retain documents in accordance with their records retention schedules.

Allowing an employee to be accompanied

71. There is no statutory right of accompaniment at meetings held to discuss a request for flexible working. Allowing an employee to be accompanied is good practice and can help employers handle the request fairly, transparently and consistently. It can also give employees confidence to make requests and can support both parties in finding a mutually agreeable solution.

72. If an employee makes a request to be accompanied at any meeting to discuss their flexible working request, and the request to be accompanied is reasonable, the employer should allow this. The companion could be:

a fellow employee
a trade union representative
an official employed by a trade union

The employer should inform the employee before the meeting that they may ask to be accompanied.

73. A request to be accompanied does not need to be made in writing or within a set timeframe. The employee should, where possible, give the employer enough notice to make arrangements, and provide the companion's name and status.

Handling an appeal

74. There is no statutory right of appeal against a decision about a request for flexible working. However, allowing an employee to appeal can help employers both handle requests fairly and make a reasonable decision.

75. The written final decision should make clear whether the employee has the option to appeal. It should explain how to appeal and the timeframe for submitting an appeal.

76. If an employee wishes to appeal the decision about their request, they should let their employer know the reasons for their appeal in writing.

77. If the employer receives an appeal, they should arrange an appeal meeting without unreasonable delay, following the guidance set out in this Code.

78. The appeal should be dealt with impartially. The person holding the appeal meeting should have authority to reconsider the request and make a decision. Wherever possible, the appeal should be handled by a manager who has not previously been involved in considering the request.

79. Once the employer has made a decision about the appeal, they must inform the employee of that decision. They should confirm the decision in writing without unreasonable delay. They should take account of the statutory 2-month period for deciding requests. The decision should make clear what has been decided and why.

80. The employer should keep a written record of the appeal meeting. The record should accurately reflect the discussion.

If the employee does not attend a meeting

81. The employer may consider the request withdrawn if both of the following apply:

the employer arranges a meeting to discuss the request, including any appeal
the employee fails to attend both this meeting and a rearranged meeting without good reason

82. If the employer does consider the request withdrawn, they must inform the employee of this. This should be done in writing.