Employers handling a flexible working application are expected to follow the ACAS Code of Practice on Flexible Working, and tribunals must take it into account when deciding whether a request was dealt with properly. While the Code is short and relatively straightforward, many small businesses are unaware of it and its importance to their decision making in the context of flexible working requests.
Helping employers translate codes and guidance of this kind into something their managers can apply is a large part of what our specialist HR consultants do every day.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
What Is The ACAS Code Of Practice On Flexible Working?
The Code is a statutory code issued by ACAS under the Trade Union and Labour Relations (Consolidation) Act 1992. The current version was laid before Parliament in December 2023 and came into effect on 6 April 2024, replacing the earlier 2014 code on handling requests to work flexibly in a reasonable manner.
It was revised to reflect the changes introduced at the same time, including the day-one right to request, the increase to two requests per 12-month period, the reduction of the decision period to two months, and the removal of the requirement for employees to explain the effect of their proposed change on the business.
What Legal Status Does The Code Carry?
The Code is not itself law, and failing to follow it is not automatically unlawful. Its significance is evidential. Where a tribunal is considering a complaint about how a flexible working request was handled, it must take the relevant provisions of the Code into account.
Where an employer has unreasonably failed to follow the Code, a tribunal may adjust any compensation awarded by up to 25%. In practice, an employer that has followed the Code is in a strong position to show it acted reasonably, while one that has departed from it will need to explain why.
What Does The Code Expect Employers To Do?
The Code sets out how requests should be handled from receipt to conclusion. Employers are expected to deal with requests in a reasonable manner and without unnecessary delay, and to arrange a meeting to discuss the request unless they intend to approve it in full.
It recommends allowing the employee to be accompanied at that meeting by a work colleague, a trade union representative, or an official employed by a union. This is not a statutory right in the way it is for disciplinary and grievance hearings, but refusing without good reason is against the spirit of the Code.
The Code also expects employers to discuss alternatives where the request cannot be accommodated, to notify the decision in writing, and to allow the employee to appeal. It makes clear that requests should be considered on their merits, and that employers should not ask an employee to justify why they want the change.
How Will The Employment Rights Act 2025 Affect The Code?
The Employment Rights Act 2025 will place several matters currently addressed by the Code onto a statutory footing, with commencement expected in 2027. Regulations are anticipated to prescribe the consultation steps an employer must take before rejecting a request, which the Code presently covers as good practice.
The consequences of departing from a statutory requirement are different from the consequences of departing from a code. It is also reasonable to expect the Code to be revised in due course so that it aligns with the new framework, as it was revised in 2024 to reflect the previous round of reform. Employers who already comply with the Code will find that transition considerably easier than those who do not.
How Does The Code Differ From ACAS Guidance?
ACAS publishes non-statutory guidance alongside the Code, and the two serve different purposes. The Code is the short statutory document that tribunals must take into account. The guidance is longer and more practical, covering matters such as the different types of flexible working available, the benefits to employers and employees, and worked examples of how requests might be handled.
The guidance is genuinely useful, particularly for managers who have not dealt with a request before, but it does not carry the same weight. When you are checking whether your process is legally sound, the Code is the document that matters.
For most small employers, the sensible approach is to use both. You should build your policy and your decision letters around the requirements of the Code, so that the process itself is defensible, and use the guidance to help managers think through the practical questions that arise once a request has been received. Neither document, however, tells you how the law applies to your particular circumstances, and that is where expert advice tailored to your business becomes invaluable.
How Can GAP HR Help You Apply The ACAS Code Of Practice On Flexible Working?
At GAP HR, we help small businesses like yours to navigate employment law issues every day. We can review your current process against the Code, identify where you depart from it, and brief your managers on what they need to do when they receive a flexible working request. Where a request is already underway, we can guide you through handling it step by step.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
