Update on Code of Practice on Flexible Working

Catherine Hare
Catherine Hare

Published: February 1st, 2024

7 min read

Acas have published their draft Code of Practice on Flexible Working, which will incorporate the changes to flexible working with effect from the 6th April 2024. The Code is currently awaiting Parliamentary approval. The draft code can be found here.

By way of reminder, the Employment Relations (Flexible Working) Act 2023 will makes changes to the flexible working provisions contained in the Employment Rights Act 1996 to:

  • introduce a new requirement for employers to consult with the employee before rejecting their flexible working request
  • allow an employee to make two statutory requests in any 12-month period (rather than the current one request)
  • reduce the decision period (within which an employer shall consider the statutory request) from 3 months to 2 months
  • remove the existing requirement that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with

Alongside the 2023 Act, the Flexible Working (Amendment) Regulations 2023 will make changes to the Flexible Working Regulations 2014 by making the right to request flexible working apply from day one of employment (by removing the existing 26-week qualifying period).

Whilst the Code imposes no legal obligations and a failure to observe it does not by itself make any person liable to legal proceedings…" any provisions of the Code are admissible in evidence and taken into account in proceedings before any court or employment tribunal where the court or tribunal considers them relevant."

The Code reflects what will be included in the new Employment Relations (Flexible Working) Act 2023. The explanatory memorandum to the draft Code states that:

"The Code has been designed to provide clarity to employers and employees on making and handling requests for flexible working. With the new day one right, the Code will apply to every employee and employer. The tone and positioning of the Code also signals that the starting position should be to consider what may be possible".

Acas will also produce non-statutory guidance to accompany the Code.

Acas survey

In addition, Acas have just released the results of a new survey, where they asked participants: "To what extent has the proportion of employees working from home in your business increased or decreased in the last 12 months (since January 2023)." The results were:

  • Significantly increased: 10%
  • Slightly increased: 20%
  • No change: 54%
  • Slightly decreased: 9%
  • Significantly decreased: 4%
  • Don't know: 3%
  • Net increased: 30%
  • Net decreased: 13%

Participants were also asked: "Over the past 12 months (since January 2023), has your business implemented a change to home working policies due to a reduction in physical workspace?"

The results were:

  • Yes: 20%
  • No: 77%
  • Don't know: 4%

Acas Chief Executive, Susan Clews, said:

"There has been a global shift to flexible working following the pandemic and it is clear from our poll that there's a continued appetite among staff and employers.

Some businesses have benefitted by reducing office costs as well as attracting the best talent. Staff can find flexible working valuable to better balance their working lives.

Home or hybrid working are just some examples of an array of flexible working arrangements that are available. Our new draft Code encourages employers to take a positive approach to flexible working and covers the new law changes."

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