Acas consults on updates to its flexible working Code of Practice

Acas has launched a consultation on updates to its Code of Practice on handling requests for flexible working. The new draft Code reflects the significant shifts in the ways of working since the current Code was published in 2014, as well as anticipated changes to the law. The rationale behind it is to encourage employers to take a more positive approach to flexible working so that requests are not rejected by default without meaningful dialogue with the employee. The Code will not be legally binding but it will be taken into account by courts and employment tribunals when considering relevant cases.

The precursor to this is the Employment Relations (Flexible Working) Bill which is currently making its way through parliament. It’s a government-backed Private Member’s Bill introduced by Labour MP Yasmin Qureshi and is expected to come into force at some point in 2024. The key changes it makes are: 

- Requiring employers to consult with their employee before rejecting their request
- Allowing employees to make 2 flexible working requests in any 12-month period, instead of the current one and to respond within 2 months instead of the current three; and
- Removing the current requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer

The other big change sees the right to request flexible working become a day one right. The Bill doesn’t cover that point but the government has previously committed to that change which will come in the form of secondary legislation. 

As you may be aware, that change is one the CIPD has been calling for since February 2021 through its #Flexfrom1st campaign. It explains why People Management have been running so many articles on this recently, the latest of which highlights two key findings from two recent surveys on this. The first shows that the uptake of the new right would be very high - half of UK workers would take advantage of the new day-one flex rights when it becomes law. The second shows the level of awareness of the new right is very relatively low - 49% of organisations said they were unaware of the impending changes.

The CIPD’s Claire McCartney, senior policy adviser at the CIPD, calls for more education and preparation from businesses ahead of the new legislation. She says: “Employers don’t need to wait to make a change to their flexible working policies and should offer the right to request flexible working from day one of employment, wherever possible.” The article also quotes Sarah Dauncey, head of partnerships at Timewise who conducted one of the studies. She says: “Employers need to take heed to get on the front foot, ensuring that all workers have a degree of autonomy and control over their working patterns.”

So, let’s consider that last point - giving workers a degree of autonomy and control over their working patterns. That issue has become very important in recent times as employers strive to attract and retain talent. It’s achieved through a combination of flexible working and hybrid working policies but, in our experience, the difference between them is not well understood. Earlier, Anne Sammon joined me by video-link and she explained the point: 

Anne Sammon: “Yes. So, hybrid working is something that firms have embraced. Hybrid working is effectively you can work from a different location according to the employer’s schedule. So, what we see with a lot of organisations is you can work from home two days a week, for example, or three days a week. That is the employer dictating the terms of where somebody works from a different location potentially, whereas a flexible working request can cover a whole host of different things. It can change your time of work but it can also change your location of work. So, somebody might work for an employer where their hybrid working policy says you can work from home two days a week, but they may need to work from home three days a week and so they may need to put in a flexible working request to, effectively, vary the hybrid working policy. The challenge that we're seeing at the moment is that a lot of employers don't understand that distinction. So, we're seeing some rather unusual behaviours like, for example, saying to employees you can't put in a flexible working request if it's about location of work and, from a legal perspective, that's incorrect. The flexible working rights as we have them today, and as we will have them once the bill goes through, say that you can request a change of location. So, employers just need to be very careful that they're understanding that hybrid working doesn't impact someone's ability to put in a flexible working request that adapts their working pattern so that it suits the individual.”

Joe Glavina: “Is it a helpful shorthand, Anne, to refer to flexible working as giving certainty and hybrid working, conversely, giving flexibility?”

Anne Sammon: “Potentially, I mean, hybrid working can give certainty, although the thing that's quite interesting about hybrid working is, what a lot of the policies that we see around hybrid working are saying is, you must spend a certain number of days in the office. So, it doesn't always give that amount of flexibility. Flexible working, on the other hand, tends to be that you are working a particular pattern. So, it might be that I've requested, for example, that every Monday and Thursday I'm going to work from home whereas under my hybrid working policy I would be allowed to work two days a week from home but I wouldn't have the certainty that that was always going to be a Monday and Thursday. So, there are distinctions. I think in both cases where they work best is where there's flexibility on both sides. So, I wouldn't want the idea being that hybrid is all about flexibility and flexible working is always about certainty, because the best flexible working patterns that I've seen have been the ones where individuals are prepared to kind of alter their patterns where necessary to help the business.”

The CIPD has a very good resources section on their website with a lot of useful information about both flexible and hybrid working and we’ve put a link to that in the transcript of this programme for you. Meanwhile, if you’d like to respond to the Acas consultation you have until 6 September to do that. Acas says it’s inviting comments on all aspects of the draft Code but there are a number of specific issues they are keen to hear your views on and they are listed in the paper. We’ve included a link to the consultation paper in the transcript of this programme. 

LINKS
- Link to CIPD resources on flexible and hybrid working 
- Link to Acas consultation on the draft Code of Practice on handling requests for flexible working