Acas response to consultation on draft Code of Practice on handling requests for flexible working

In anticipation of the passing of the Employment Relations (Flexible Working) Act 2023, and the new day 1 right to request flexible working coming into force on 6 April 2024, Acas prepared a new draft Code of Practice on requests for flexible working. This updates, revises and replaces the 2014 Acas Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly.

This work was overseen by the independent Acas Council which is made up of employer representative, worker representative and independent members.

Acas held a public consultation on the draft Code which took place between 12 July and 6 September 2023. 162 responses were received.

61% (100) of all respondents were individuals, of these:

• 31% responded in a professional capacity
• 28% responded as an individual expressing their personal views and experience
• 2% shared their views as an individual trade union representative

The remaining 38% (62) of respondents were organisations, of these:

• 9% were small and medium-sized enterprises (SMEs)
• 7% were large organisations with more than 250 employees
• 7% of respondents were trade union or other employee representative organisations
• 4% made up employer representative organisations or associations

Both organisational and individual respondents stemmed from a range of sectors, including:

• the charity or voluntary sector (32% of organisational respondents; 9% of individual respondents)
• the public sector (19% and 47%)
• those mainly seeking to make a profit (18% and 29%)

Acas is grateful to all those who engaged in the consultation. Submissions have provided rich evidence and insights to shape Acas's considerations in redrafting the Code.

The revised Acas Code of Practice on requests for flexible working was laid before Parliament on 11 December 2023. The Code completed its parliamentary passage and came into force on 6 April 2024.

Main findings from the consultation and Acas's response are summarised below.

Section A: Review of the existing Code

Question 1: In addition to updating the Code to reflect changes to the law, should Acas also reconsider the overall good practice principles in the Code?

The majority (77%) of respondents answered 'yes' to question 1. They commonly cited significant societal and workplace developments in flexible working since Acas's 2014 Code was published, including the covid-19 (coronavirus) pandemic. This rationale supports Acas's thinking on the need for fresh consideration of the Code's good practice principles.

Section B: Foreword

Question 2: Does the Foreword to the Code strike the right tone in encouraging an open-minded approach to flexible working, with a focus on what may be possible?

The majority (77%) answered 'yes', with respondents describing the Foreword as clear and well-balanced. Suggested revisions included highlighting further benefits of flexible working, for example:

• improved health and wellbeing
• a greater recognition of potential challenges in implementing flexible working
• framing the sentence stating that "The default position should not be to reject requests" more positively

In response, the revised Foreword expands on the benefits of flexible working. Recognising that what may be possible will differ in each case, the Foreword emphasises the importance of engaging in meaningful and transparent discussions as a foundation for evidence-based decision-making. The previous wording on "the default position" has been removed and new wording states that: "The starting position should be to consider what may be possible." Where a request is rejected, the Foreword highlights the importance of clear communication about the reasoning. Other changes made in response to feedback include clarifying that the Foreword does not form part of the statutory Code.

Question 3: Do you think that it is helpful to include a definition of 'flexible working' within the Foreword to the Code?

Question 3a: If you answered 'yes', which definitions should the Foreword provide?

Question 3 elicited the highest level of agreement at 93%. Of this group, 92% agreed with the option to include a broader definition of flexible working. Suggestions focused on providing illustrative examples of flexible working.

Acas agrees that there is value in setting out examples to support awareness and understanding of the wide range of possible working arrangements and has made these additions.

Section C: Legal terminology

Question 4: Should the Code provide guidance on 'consulting' with employees about a request?

Question 4a: If you answered 'yes', please outline any other issues the Code or non-statutory guidance should provide guidance on, to help employers and employees understand what is expected during consultation.

A majority (91%) answered 'yes' to question 4. Respondents believed that guidance would increase clarity around the new legal requirement to consult. Preferences on guidance content were many and wide-ranging.

The Code now includes guidance on issues that would usually be appropriate to discuss in a consultation meeting. More guidance on consultation meetings, drawing on the extensive insights shared by respondents, is provided in Acas's non-statutory guidance on flexible working which accompanies the statutory Code.

Question 5: What is your opinion on the guidance in the Code about offering an employee a meeting, even when the employer plans to accept their request?

The free-text responses to this question showed that most respondents supported Acas's proposed approach, seeing benefit in having a discussion about logistics and expectations in a newly agreed arrangement. Some wanted emphasis that the meeting should be optional as such a discussion may be mutually seen as unnecessary depending on circumstances. Others felt the expectation to hold a "meeting" could result in an overly formal process and that there should be greater flexibility in the form that this discussion might take.

Acas agrees with the rationale provided for these suggestions. Revisions to the Code made in response include:

• replacing the term "meeting" with "opportunity for a discussion"
• recommending that the written decision to accept the request should offer such a discussion
• making clear that parties may mutually agree that a discussion is not needed

Question 6: Should the Code include a section on the protection from detriment and dismissal?

A majority (87%) answered 'yes', with many highlighting the importance, for both employers and employees, of awareness and understanding of these legal protections. Some highlighted further important protections, including the potential for discrimination as a result of disclosing information about a protected characteristic as part of a flexible working request. Acas agrees these are important considerations. The Code therefore retains this section and expands on relevant protections.

Section D: Procedural guidance within the Code

Question 7: What are the advantages and disadvantages of the Code recommending that employees should be allowed to be accompanied at meetings to discuss flexible working?

More respondents expanded on the advantages of having a companion than on the disadvantages. A main advantage raised was the role of companions in providing emotional support to employees and help with understanding or providing relevant information. Acas shares this view and recognises that companions can be an important source of expertise and advice where such meetings carry legal consequences for both the employee and the employer.

For these reasons, Acas has decided that the Code should retain the recommendation to allow accompaniment.

To address the issue of potential confusion arising from there being no statutory right of accompaniment in flexible working meetings – an issue that the Acas consultation specifically asked respondents to consider – the Code now emphasises that allowing accompaniment at meetings is a matter of good practice rather than a legal obligation.

Question 8: What is your opinion on the Code recommending the same categories of companion as those that are allowed in discipline and grievance meetings?

The free-text responses to this question showed overall support for the proposed approach. The most common reason given in favour was the benefit of having consistency with the categories of companion allowed in discipline and grievance meetings, and the level of clarity and simplicity that this would bring in handling different procedures. A smaller number of respondents perceived such consistency as problematic. This was due to concerns about potential confusion as to whether there is a statutory right to accompaniment at flexible working meetings, also noted in question 7 above.

Having carefully considered responses on this issue, Acas has decided that the Code should recommend accompaniment by these categories of companion given that meetings about flexible working requests can have important legal consequences for both parties. As noted at question 7, emphasis has been added in the Code to clarify that allowing accompaniment is a matter of good practice.

Question 9: Should the Code recommend that employers provide any additional information as is reasonable to help explain why a request has been rejected?

A majority (91%) answered 'yes', with respondents describing advantages for both parties. For example, for employers, the provision of additional information would improve their decision-making, and for employees, such information would help in making decisions about whether to appeal and in shaping any future requests.

Acas agrees with this rationale and with other responses which noted that being transparent in communicating any decision to reject can encourage greater accountability and help establish trust that a request has been duly considered. The Code therefore retains this recommendation.

Question 10: For larger organisations, what are the advantages and disadvantages of the Code stipulating that, where possible, an appeal should be handled by a manager not previously involved with a request?

Advantages listed included the benefit of having 'a second pair of eyes' from an independent decision-maker, while disadvantages included concerns that a different manager may not have sufficient understanding of an employee's role and the likely impacts of their request. Some respondents expressed concerns about a lack of clarity around the term "larger organisations".

Acas considers it to be good practice to appoint a different manager to handle an appeal and has retained this recommendation but without reference to "larger organisations". Instead, the Code states that appeals should be handled by a different manager "wherever possible".

Section E: The statutory right to request a predictable work pattern

Question 11: Should the Code include a section about the right to request a predictable work pattern if that right is introduced?

Question 11a: If you answered 'yes' to question 11, do you believe that paragraphs 27 to 29 in the draft Code provide sufficiently clear guidance on the interaction between the 2 rights?

While a majority (72%) of respondents were in favour of the Code having this section, responses included the highest proportion of 'don't know' responses to closed questions in the consultation. This appeared to reflect uncertainty arising from unfamiliarity with the forthcoming right to request a predictable work pattern. As that right is not due to come into force until autumn 2024, the Code does not presently include a section on the right to request a predictable work pattern.

Acas will review this position later in 2024.

Additional considerations

Some respondents raised other issues which, while there were no corresponding consultation questions, Acas has also addressed in revising the draft Code.

Suggestions were made for clarification around the draft Code's wording on requests for flexible working as a reasonable adjustment for a disabled person. Acas has carefully considered this issue, including through direct engagement with the Equality and Human Rights Commission (EHRC). The wording in the Code has been revised to state that an employer must consider any such requests in line with its legal obligations under the Equality Act 2010, and to clarify that the duty to make reasonable adjustments is separate to the legal obligation to consider a request for flexible working.

Feedback was also received requesting clarity on the meaning of the draft Code's references to complying with certain procedural steps "without unreasonable delay". The Code now explains that, for instance, the arrangement of meetings should take into account that all steps involved in handling a request must be completed within the statutory 2-month period for deciding requests.

Acas has decided to shorten the title of the Code to 'Code of Practice on requests for flexible working'. This is in recognition that the legal provisions and good practice covered relate to the making, as well as the handling of requests.

In anticipation of the passing of the Employment Relations (Flexible Working) Act 2023, and the new day 1 right to request flexible working coming into force on 6 April 2024, Acas prepared an updated and revised draft Code of Practice on handling requests for flexible working. This updates, revises and replaces the 2014 Acas Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly.

This work was overseen by the independent and impartial Acas Council which is made up of employer representative, worker representative and independent members.

In accordance with section 200 of the Trade Union and Labour Relations (Consolidation) Act 1992, on 12 July 2023 Acas published the draft Code of Practice for public consultation. The consultation ran for 8 weeks before closing on 6 September 2023.

In addition to the public consultation, Acas also sought feedback on the draft Code through several stakeholder events and focus groups, including with the Government's Flexible Working Taskforce, of which Acas is a member.

Acas is grateful to all individuals and organisations who engaged in the consultation. Submissions have provided rich evidence and insights to shape Acas’s considerations and approach to revising and redrafting the Code.

In line with section 200 of the Trade Union and Labour Relations (Consolidation) Act 1992, the revised draft Acas Code of Practice on requests for flexible working was approved by the Secretary of State for Business and Trade and laid before Parliament on 11 December 2023. Acas published this draft Code of Practice on 11 January 2024. 

The Code completed its parliamentary passage and came into force on 6 April 2024. It is published as the Acas Code of Practice on requests for flexible working.

This paper presents an overview of the feedback to Acas's consultation and Acas's response.

Acas received 162 responses to its public consultation.

Respondents were asked in which capacity they were responding. The categorisation presented in Table 1 below combines the self-categorisation provided directly by respondents together with further groupings derived from Acas’s analysis of the responses.

The largest number of responses came from individuals, comprising 61% (100) of all respondents. Of these: 

• 31% responded in a professional capacity 
• 28% responded as an individual expressing their personal views and experience 
• 2% shared their views as an individual trade union representative

The remaining 38% (62) of respondents comprised organisations responding either as an employer or as a representative of certain groups or interests. 

Table 1 breaks down this category into organisational size, type and remit.

Table 1: Capacity in which responses were provided

Note: Due to rounding effects, the sum of the percentages above is 99%.

Table 2 sets out the organisation types provided directly by respondents.

Table 2: Organisation type

See the below annexes for further information:

• Annex A provides a list of organisational respondents
• Annex B sets out the characteristics of individual respondents

The next sections provide a summary of submissions received and Acas's response to each consultation question.

Responses to question 1

Question 1: In addition to updating the Code to reflect changes to the law, should Acas also reconsider the overall good practice principles in the Code?

Note: Due to rounding effects, the sum of the percentages above is over 100%.

161 out of 162 respondents (99%) answered question 1.

Overview of responses

The majority (77%) of all respondents agreed that Acas should reconsider the overall good practice principles in the Code. 

The main reasons given in support were:

• the view that since the publication of Acas's 2014 Code, there have been significant changes and developments in society, culture and the world of work, with the covid pandemic the most frequently cited driver of change
• evidence demonstrating a mismatch between interest in, and availability of, flexible working, and concerns regarding current workplace practices, such as high levels of rejections of requests and discrimination
• the importance of having good practice principles complementing the law, described for example as being "an important bridge between the legislation and its application in the real world" (individual professional)

A small number of responses also focused on the benefits of good practice principles more broadly. For example:

The purpose and standing of the Code in providing authoritative guidance on changing regulation were also considered as reasons for reconsidering the good practice principles. 

The Code was seen as having the capacity to "set a tone", "provide a steer", and make a tangible difference in the implementation of the legislation:

The main reasons of disagreement with the proposal to reconsider the overall good practice principles in the Code were:

• satisfaction with the current set of good practice principles or the overall system of handling requests for flexible working
• general resistance to the new legislation, including making the right to request a day 1 right

Acas response

Acas welcomes respondents' strong support for its rationale to reconsider the overall good practice principles in the Code, in addition to bringing the Code in line with new legal provisions. It has therefore maintained this approach in developing the revised Code.

Further practical guidance on the Code's good practice principles is set out in Acas's non-statutory guidance on flexible working requests.

Responses to question 2

Question 2: Does the Foreword to the Code strike the right tone in encouraging an open-minded approach to flexible working, with a focus on what may be possible?

156 out of 162 respondents (96%) answered question 2.

Overview of responses

The majority (77%) of all respondents agreed that the Foreword to the Code struck the right tone in encouraging an open-minded approach to flexible working.

Respondents described the Foreword as clear and well-balanced, and in line with Acas's aim to convey the positive shift in attitudes towards flexible working:

Respondents also put forward proposals for adding or modifying specific statements in the Foreword. The largest number of these related to highlighting further benefits of flexible working. One of the main benefits was improved health and wellbeing.

Many respondents requested stronger emphasis on the value of flexible working for specific individuals and groups, for example: 

• those with protected characteristics 
• parents and other carers 
• people with life-stage-related needs

A small number of respondents also voiced concerns that flexible working can be commonly misunderstood as being restricted to only some segments of the workforce. They welcomed the recognition in the Foreword that flexible working can also enable balancing work with personal preferences:

The main reasons for disagreement with the proposed tone of the Foreword, including some occasionally expressed in the context of 'yes' responses, were:

• concerns of a risk of user confusion regarding the precise status of information in the (non-statutory) Foreword as distinct from the (statutory) Code
• a perception that the Foreword should provide an even stronger encouragement of flexible working
• a perception among some small and medium enterprise respondents that the Foreword conveyed an insufficient appreciation of the challenges for some businesses in implementing flexible working, and of an imbalance in the representation of the employer and employee perspectives in favour of the latter

Other proposed revisions to the Foreword included:

• providing more specific examples of flexible working arrangements
• revising the statement that "the default position should not be to reject requests", with some wishing this to be rephrased more positively, while a small number of respondents were concerned this may be interpreted as suggesting that no request may be rejected
• referencing rights and obligations under the Equality Act 2010, with respondents explaining that many flexible working requests relate to a protected characteristic
• highlighting the role of line managers in improving flexible working practices

Acas response

With the majority of respondents agreeing that the Foreword strikes the right tone. Acas has decided to retain its focus on encouraging an open-minded approach to flexible working. It remains Acas's view that the Foreword has an important role in setting the scene, helping employers and employees to understand the benefits of flexible working and the intention behind the good practice principles in the Code.

Draft wording which stated that "the default position should not be to reject requests" has been removed to address user confusion, and as part of a wider review of the overall balance of the Foreword in light of some respondent concerns. While continuing to recognise that not every type of flexible working will be suitable for every role and every organisation, the Foreword now states: "The starting position should be to consider what may be possible." Acas recognises that what may be possible in any given situation will differ according to a range of individual and organisational factors. The Foreword therefore continues to place emphasis on engaging in meaningful and transparent discussions as an important foundation for evidence based decision-making. Where a request is rejected, the Foreword highlights the importance of clear communication about the reasoning to help establish understanding and trust that the request has been handled reasonably.

In response to feedback to this question, Acas has also revised the Foreword to:

• expand on the evidenced benefits of flexible working, while noting that the examples given are illustrative only
• state clearly at the outset that the Foreword does not form part of the statutory Code, alongside the opening line which specifies the paragraphs at which the Code begins and ends
• make reference to legal obligations under the Equality Act 2010
• include additional wording on the important role of workplace leaders and managers, recognising their significant influence on promoting positive flexible working cultures

Responses to question 3 and 3a

Question 3: Do you think that it is helpful to include a definition of 'flexible working' within the Foreword to the Code?

Question 3a: If you answered 'yes', which definitions should the Foreword provide?

160 out of 162 respondents (99%) answered question 3.

Overview of responses

Of all questions, question 3 elicited the highest level of agreement at 93%. Of this group, 92% recommended the inclusion of a broader definition of flexible working, either in combination with a definition of a statutory request (82%) or by itself (10%).

Suggestions around broadening the definition centred predominantly on offering examples of the wide range of flexible working arrangements (as in responses to question 2), with respondents seeing this as an important way to support understanding of the diversity of options that may be available. Some respondents remarked that arrangements such as remote and hybrid working have become synonymous with flexible working, contributing to misunderstanding and under-appreciation of its different forms. A number of respondents emphasised that they felt it was important for definitions and lists to be broad, or to be accompanied by clarification that they are not exhaustive.

Among those who preferred the Foreword to include a narrower definition of flexible working, based on the definition of a statutory request (7%), there were concerns that a reference to anything broader could result in misinterpretation of the scope of the Code given it applies only to statutory requests for flexible working.

A small subset of respondents called for greater clarity of the difference between a statutory and non-statutory flexible working request. Others requested that the definition provide clarity about the interaction between flexible working and reasonable adjustments for a disability – see further detail in the 'Additional considerations' section.

Acas response

Given the strong majority of responses in favour of including a broader definition in the Foreword, Acas has included this to sit alongside a definition of a statutory request. Acas agrees that setting out examples can support awareness and understanding of the wide range of working arrangements that might be possible, and has therefore proceeded to make these additions, while making clear these examples are not exhaustive.

Wording in the Foreword has also been revised to make clearer that flexible working arrangements can be agreed informally (without using the statutory procedure), but that the Code must be followed where an employee makes a statutory request.

Responses to question 4 

Question 4: Should the Code provide guidance on 'consulting' with employees about a request?

Question 4a: If you answered 'yes', please outline any other issues the Code or non-statutory guidance should provide guidance on, to help employers and employees understand what is expected during consultation.

161 out of 162 respondents (99%) answered question 4.

Overview of responses

A clear majority (91%) of all respondents felt that the Code should provide guidance on the new legal requirement to consult an employee before rejecting a request.

Respondents believed that guidance would provide clarity on the new requirement, with some remarking on the fact that the concept in relation to flexible working is new (while the requirement to consult is elsewhere variously defined under existing legislation, for example, in redundancy situations).

Acas’s guidance was seen to have a role in ensuring a consistent approach to consultation across organisations, helping to reduce ambiguity and the risk of misinterpretation of what such a process should involve:

Several individual respondents expressed their desire for guidance to deter poor practices that they had experienced. They felt that including guidance on consultation in the Code would signal the serious nature of the process.

Both individual and organisational respondents believed that guidance would also help increase confidence in the process. Others cited evidence concerning the extent to which consulting can change outcomes:

With 91% of respondents endorsing the inclusion of guidance on consulting, arguments against were very few. These were:

• general opposition to the introduction of further obligations on an employer, and similarly, the wish to avoid unnecessary administration
• the availability of existing guidance around consulting (although such responses appeared to indicate some confusion between the new concept of consultation in relation to statutory requests for flexible working, and legal definitions of consultation in other contexts)
• the perception of information in the draft Code as sufficient

Various trade union respondents raised concerns regarding paragraph 14 of the draft Code, and a potential implication there that employers might enter a consultation having made a prior decision to reject a request.

On the areas the Code or non-statutory guidance should cover about consulting, the spread of considerations raised was very wide, with respondents suggesting very different areas of focus.

Most commonly, respondents wished to see guidance on the purpose of consultation and the matters needing discussion. Comments referred to the importance of viewing consultation as a 2-way process which should be undertaken with a view to reaching agreement, including exploring alternatives. Trial periods were also raised as a useful way of testing the feasibility of a proposed arrangement instead of rejecting it.

Several respondents, primarily organisational ones, recommended that Acas provide a checklist or framework for consultation discussions, either within the Code itself or in the accompanying non-statutory guidance. While some expressed a preference for a prescribed list of discussion points, others felt that the Code should clearly articulate the need for the process to be adaptive and flexible to the particular needs and circumstances of an employer and employee.

Acas response

Given the strong consensus among respondents on this question, the Code now includes guidance on issues that would usually be appropriate to discuss in a consultation meeting. These include any practical considerations involved in implementing the request. The Code further explains that, if the original request cannot be accepted in full, the employer and employee should discuss, for example, any potential modifications or alternative flexible working options, or whether a trial period may be appropriate.

Acas has also amended wording to make it clearer that "unless the employer decides to agree to the employee’s written request in full, they must consult the employee before they make a decision."

Additional guidance on consulting, drawing on the extensive insights shared by respondents, is provided in Acas's non-statutory guidance in flexible working.

Overview of responses to question 5

Question 5: What is your opinion on the guidance in the Code about offering an employee a meeting, even when the employer plans to accept their request?

155 out of 162 respondents (96%) answered question 5.

Analysis of the free-text responses to this question indicates that a majority of respondents supported the recommendation that an employer should offer an employee a meeting, even when they plan to accept their request. Some respondents emphasised that, while they should be offered, such meetings should be optional.

Advantages to offering a meeting focused primarily on providing the opportunity to discuss and clarify practicalities, logistics and expectations, and to confirm mutual understanding of the agreed flexible working arrangement. Respondents further described the value of meetings in ensuring transparency and open communication, and how these factors contribute to much broader and longer-term goals of creating and nurturing meaningful relationships with staff and good workplace cultures:

One organisational respondent also suggested that meetings could make a positive difference for individuals who struggle with change due to an underlying condition:

Reasons opposing the offer of a meeting most frequently focused on the perceived lack of value or effectiveness of such meetings, in particular where a request is considered straightforward or accepted in full. Some felt the expectation to hold a "meeting" could result in an overly bureaucratic or formal process. One respondent explained:

A further suggestion, mostly from trade union respondents, was that employers should be required to provide advance notice of the reason for the meeting while making clear in their offer that the employee’s request has been accepted. Respondents felt this would help avoid confusion and potential anxiety about the purpose of the discussion.

Acas response

While most respondents supported this recommendation, Acas agrees with the rationale provided for the suggestions to ensure clarity about the purpose of such discussions, and to allow scope for choice where these are mutually regarded as unnecessary. The recommendation in the Code has therefore been retained with the following amendments:

• replace the term "meeting" with "an opportunity for a discussion"
• explain that the purpose of the discussion is "to clarify any further information that may be helpful in implementing the agreed arrangement"
• make clear that the offer of a discussion should be included within the employer’s written decision about a request, along with a confirmation that the request has been agreed
• add a statement that parties "may mutually agree that such a discussion is not necessary"

Responses to question 6

Question 6: Should the Code include a section on the protection from detriment and dismissal?

Note: Due to rounding effects, the sum of the percentages above is over 100%.

161 out of 162 respondents (99%) answered question 6.

Overview of responses

A clear majority of respondents (87%) were in favour of including a section on the protection from detriment and dismissal.

Most frequently, respondents highlighted the benefits and importance of having clarity and awareness of such protections. As well as supporting employers to fulfil their legal obligations, respondents regarded setting out these protections in the Code as important in giving employees more confidence to make a request for flexible working, while reducing fear of reprisal. Trade union respondents primarily advanced this argument, with some individual respondents also referencing the risk of retribution for making a request:

Referencing these protections in the Code was also seen as a tool to help address the challenges experienced by certain categories of individuals who may benefit from flexible working, including:

• women with caring responsibilities 
• disabled people
• neurodiverse people 

Evidence cited by respondents included the following:

• Chartered Institute of Personnel and Development (CIPD): "Only 47% of employees would feel comfortable requesting a formal flexible working pattern (with 28% feeling uncomfortable)."
• Trades Union Congress (TUC): "86% of mums who worked flexibly told us they had experienced discrimination and disadvantage as a direct result of this."
• Department for Business, Energy and Industrial Strategy (now Department for Business and Trade) and Equality and Human Rights Commission: "Half (51%) of women reported discrimination or disadvantage as a result of requesting flexible working arrangements."
• Deloitte: "An overwhelming 97% of women believe that asking for flexible work arrangements could adversely impact their chances of promotion at work."

Few reasons were cited against the inclusion of this section, however these included:

• perceptions that such protections were of limited relevance to the Code, and a preference for keeping the Code brief
• concerns that reference within the Code could lead an employment tribunal to wrongly view a dismissal as having been related to a flexible working request
• the potential risk of creating an impression of effective entitlement to have a request for flexible working granted, that is any rejection would be a detriment; or on the contrary, and in opposition to the majority view, that reference to potential detriment and dismissal might put people off making a request

Some respondents expressed a preference for the section to cite protections under the Equality Act 2010. Others similarly raised concerns regarding the potential for discrimination as a result of disclosing information about a protected characteristic as part of a flexible working request.

Acas response

Given the clear majority view here, the section on protections from detriment and dismissal has been retained in full, with some changes to refine the phrasing.

Additionally, Acas considers that there is value in the Code highlighting further important protections against discrimination. The Code therefore now states that: "In handling a request, and any information that the employee discloses as part of that request, employers must not discriminate unlawfully against the employee in relation to any of the protected characteristics set out in the Equality Act 2010." (paragraph 10 of the Code)

Overview of responses to question 7

Question 7: What are the advantages and disadvantages of the Code recommending that employees should be allowed to be accompanied at meetings to discuss flexible working?

148 out of 162 respondents (91%) answered question 7.

More respondents expanded on the advantages of having a companion than on the disadvantages. Most frequently, advantages were said to include the various ways in which the employee would be supported by a companion at meetings. One individual respondent noted the potentially significant consequences of a flexible working decision as a general justification for accompaniment:

Respondents articulated 3 main specific types of support that individuals could benefit from:

• emotional and psychological support, with feedback frequently referring to perceptions of a potentially "nerve-racking" experience
• support with information processing, for instance by having "another pair of ears" to listen – a companion could help make sure that all points are covered, while also watching out for important details and taking notes
• support with amplifying the employee’s voice, either by giving them confidence to present their case, even without the companion’s direct involvement, or by the companion speaking up for them if they find it difficult to advocate for themselves or articulate their point

Accompaniment was deemed to be particularly beneficial for individuals who: 

• are neurodivergent
• have learning difficulties 
• have poor mental health 
• are disabled 
• are ethnic minority employees

Organisations' familiarity with allowing accompaniment in other types of meetings was another reason given in support of including this recommendation for flexible working meetings:

Further advantages are set out under question 8.

Disadvantages raised by respondents in relation to accompaniment concerned:

• the potential for confusion arising from there being no statutory right of accompaniment in meetings held to discuss flexible working as there is for disciplinary and grievance hearings, with some calling for the Code to clarify this point
• the risk that including this in the Code could unintentionally create an overly formal process, or result in a meeting appearing "more serious" than it needs to be because it might resemble a disciplinary hearing
• the practicalities of coordinating companion availability, resulting in potential delays
• the parameters of a companion’s role and the perception that some can be "difficult" or "interfere with the process"

A small number of respondents suggested the Code might provide further clarity of what is meant by a 'reasonable request' to be accompanied.

Acas response

On the balance of responses, Acas has decided that the Code should retain the recommendation that an employer should allow an employee to be accompanied at a meeting held to discuss flexible working.

Acas's 2014 Code already provided that an employee should be allowed to be accompanied by a work colleague. Acas shares respondents' views that companions can and do offer an important source of support, both in increasing employees' confidence in the process, and in encouraging and supporting employers and employees to reach consensus. Additionally, given that such meetings can carry contractual and other legal consequences for both parties, Acas considers that there is benefit in the Code providing the option of accompaniment.

The Code now gives further detail on what a 'reasonable request' to be accompanied looks like. This is intended to provide clear, practical guidance for both employers and employees to support the making and implementation of requests to be accompanied. It mirrors closely the wording in Acas's Code of Practice on disciplinary and grievance procedures which was drafted following a public consultation on this issue in 2015.

Acas recognises that it is important for employers and employees to be aware that there is no statutory right to accompaniment in flexible working meetings, as there is in disciplinary and grievance hearings. The Code clarifies this point, and adds for emphasis, that allowing accompaniment is a matter of good practice. The same approach has been taken later in the Code in respect of allowing an appeal.

Additional considerations in relation to accompaniment are set out under the response to question 8 findings below.

Overview of responses to question 8

Question 8: What is your opinion on the Code recommending the same categories of companion as those that are allowed in discipline and grievance meetings?

145 out of 162 respondents (90%) answered question 8.

Analysis of the free-text responses to this question suggests overall support for the proposed approach. A small subset of respondents appeared to be ambivalent or explicitly stated that they had no opinion on the recommendation.

Consistency of the categories of companion with those allowed in discipline and grievance meetings, and the clarity and simplicity this brings, was by far the most common argument in favour of the Code recommending these categories of companion.

A smaller number of respondents perceived such consistency as problematic. As similarly observed under question 7, this was primarily due to the risk of bringing about an association with discipline and grievance processes which were perceived as more negative experiences than flexible working requests. Respondents here also deemed the recommendation to introduce unnecessary layers of formality.

In contrast, others considered a flexible working meeting to be inherently formal, and with potentially significant consequences for individuals. They therefore felt it appropriate to adopt the same approach to accompaniment as for disciplinary and grievance hearings to ensure employees benefit from appropriate support. One respondent observed:

As also identified in question 7, a couple of respondents noted the potential misperception that may arise from aligning categories of companion with those available under the statutory right. Others called for the categories to be further widened to include, for example: 

• a family member or friend 
• a personal assistant or carer 
• a legal professional
• an interpreter

Further arguments in favour of accompaniment (in responses to both question 7 and 8) included:

• the improvements a companion can bring to the dialogue and negotiation around a request, contributing to transparency, fairness, consistency and clarity
• the broader pool of experience and knowledge that can be drawn on at the meeting, in particular that of trade union representatives or officials
• the belief that employers would be more likely to take the request seriously and less likely to treat the employee unfairly, with some respondents noting the benefit of having a "witness" to the meeting

Acas response

Following careful deliberation, Acas has decided that the Code should recommend the same categories of companion as those allowed in discipline and grievance meetings: 

• a fellow worker 
• a trade union representative
• an official employed by a trade union

As noted at question 7 above, meetings about flexible working requests can have important legal consequences for both parties. Furthermore, while attitudes towards flexible working are evolving, evidence from Acas’s consultation points to persistent issues around stigma and low levels of confidence in making requests. Enabling employees to have access to a wider group of companions than the 2014 Code recommends, will provide an important route to third party support and advice where needed. As noted at question 7, the Code now clarifies that allowing accompaniment is a matter of good practice rather than a statutory entitlement.

Acas's non-statutory guidance on flexible working includes advice on allowing accompaniment by other categories of companion where this would be a reasonable adjustment for a disability.

Responses to question 9

Question 9: Should the Code recommend that employers provide any additional information as is reasonable to help explain why a request has been rejected?

All 162 respondents (100%) answered question 9.

Overview of responses

Alongside questions 3 and 4, question 9 was one of the closed questions attracting the highest levels of agreement at 91%.

The most frequently advanced reason in support of the recommendation was an expectation that it would improve employers' decision-making processes. Respondents believed that providing additional information would lead to greater transparency, fairness and trust in the process by demonstrating that a request had been properly considered. This reason was sometimes given within the context of describing negative experiences of current practices.

The need to provide a more detailed rationale was seen to be advantageous for both sides. For employees, this would help to optimise decisions regarding any appeal, potentially reducing the number of these, and support them to "fine-tune" future requests. For employers, it would also bring benefits when reviewing arrangements in the future:

The low number of concerns cited by respondents included: 

• practical considerations around the scope of the additional information that should be provided 
• the perception of creating an unnecessary burden on employers 
• potential data protection issues around sharing sensitive business information 
• whether additional information could in some cases be "misconstrued" by employees and lead to disputes

Acas response

Given the overwhelming support of respondents for this approach, Acas has decided that the Code should retain this recommendation. Acas acknowledges the concerns raised by some respondents and agrees it is important that the Code's recommendation is applied in a way that is practicable and beneficial for both employers and employees. Acas expands further on practical considerations in this area in the non-statutory guidance accompanying the Code.

Overview of responses to question 10

Question 10: For larger organisations, what are the advantages and disadvantages of the Code stipulating that, where possible, an appeal should be handled by a manager not previously involved with a request?

145 of all 162 respondents (90%) answered question 10.

Analysis of the free-text responses to this question revealed a range of perceived advantages and disadvantages to the proposed approach. A number of responses stated they could see no disadvantages or described that it was already their current practice to appoint a different manager to handle an appeal.

The advantages most frequently highlighted were:

• ensuring impartiality, fairness, objectivity, limiting actual or perceived bias or favouritism, and increasing trust in the process
• "having 'a fresh pair of eyes' which could potentially see new solutions acceptable to both parties, as "the additional person now reviewing this will provide their own ideas, inspiration, perspectives, knowledge and experiences" (Individual professional)
• consistency between the flexible working appeal process and the appeal process for disciplinaries and grievances, and in decisions across teams or an organisation

Other advantages, more rarely mentioned, included:

• encouraging greater accountability of the original decision-maker
• addressing a perceived low likelihood that the original decision-maker would change their decision if hearing an appeal
• reaching a decision which better represents the position of the business as opposed to that of an individual manager
• greater potential to avoid legal claims following a rejected request
• reducing the chances of a breakdown in the relationship between the employee and original manager

Disadvantages identified by respondents included:

• the potential that a different manager may have insufficient awareness of the nature of the employee’s role and needs of the business area concerned, and therefore may be less well positioned to identify the likely impacts of any arrangement
• the possibility of close interdependence between the original decision-maker and the appeal manager which may impact decision-making: "More often than not the person who has refused the request is only acting on the narrative of the higher manager who, although not directly involved, has set the tone for the requests" (Individual trade union representative)
• the risk of conflict arising between parties, for example where an overturned decision may be interpreted as "undermining" the original manager
• concerns that sharing personal or sensitive information in a request with a new or unfamiliar manager could result in discomfort for the employee

The logistics of arranging the involvement of another manager was also raised as a potential challenge, but some respondents considered that any such disadvantage would not outweigh the benefits of the proposed approach.

A number of respondents also sought greater clarity on what constituted "larger organisations" for the purposes of this provision in the Code. Different views were expressed on how this might be defined and whether this qualification was needed or appropriate. Some, in particular trade union respondents, believed that the recommendation should be widened beyond "larger" organisations to apply to most or all organisations, with some suggesting cut-off points at 50 or 100 employees.

Further feedback suggested making it clear that the person chairing the appeal should have the authority to overturn a decision.

Acas response

Having carefully considered respondents’ views on the advantages and disadvantages of the proposed approach, Acas has decided that the Code should retain the recommendation that a different manager should be appointed to handle an appeal.  

In response to feedback, the Code now clarifies that: "The person holding the appeal meeting should have sufficient authority to make a decision."

Acas has removed the reference to "larger organisations", in recognition that the scope of this term may be unclear. The Code now recommends that appeals should be handled in this way "wherever possible" which aligns with the similar provision in Acas's Code of Practice on disciplinary and grievance procedures. This will allow the appeal process to be flexible depending on circumstances and resources available. The Code retains the important overarching emphasis that an "appeal should be dealt with impartially".

Further considerations around the handling of the appeal process are set out in Acas's non-statutory guidance on flexible working.

Responses to question 11 and 11a

Question 11: Should the Code include a section about the right to request a predictable work pattern if that right is introduced?

Question 11a: If you answered 'yes' to question 11, do you believe that paragraphs 27 to 29 in the draft Code provide sufficiently clear guidance on the interaction between the 2 rights?

Note: Due to rounding effects, the sum of the percentages above is over 100%.

Overview of responses

While a majority (72%) of respondents were in favour of the Code including this section, responses to both question 11 and 11a evoked the highest proportion of 'don't know' responses to closed questions in the consultation (18% and 30% respectively). Question 11a was the only consultation question where different categories of responses were almost equally represented.

This most likely reflects uncertainty arising from unfamiliarity with the forthcoming right to request a predictable work pattern which is not due to come into force until autumn 2024. Some respondents stated that further detail was needed before a considered response could be given. The risk of confusion between the rights was used as an argument in support of all 3 responses ('yes', 'no' and 'don't know') to question 11.

Acas response

Following this consultation on the draft Code on flexible working requests, Acas issued a separate public consultation on a draft Code of Practice on handling requests for a predictable working pattern. This ran from 25 October 2023 to 26 January 2024, and similarly sought views on whether a section on the right to request flexible working should be included in that Code.

As the Workers (Predictable Terms and Conditions) Act 2023, which will introduce the right to request a predictable work pattern, is now expected to come into force in autumn 2024. It will not be in effect at the time of the implementation date of the Acas Code of Practice on requests for flexible working in April 2024. For this reason, Acas has decided that the Code will not presently include a section on the right to request a predictable work pattern.

Acas will review this position, taking into consideration responses from both public consultations, to determine whether a revision to the Code in this respect should be made for the autumn 2024 implementation of the new right to request a predictable work pattern.

In addition to the consultation feedback summarised above, some respondents raised other issues for which there were no corresponding consultation questions.

Reasonable adjustments

Several respondents commented on the draft wording at paragraph 11, which stated: "Any requests for a reasonable adjustment related to an employee's disability should be dealt with separately rather than as a flexible working request." While various respondents agreed with such positioning, a smaller number, including the Equalities and Human Rights Commission, queried this recommendation.

After careful consideration, including direct engagement with the Equalities and Human Rights Commission, Acas has decided to amend this wording in recognition that the appropriate process to follow may vary depending on individual circumstances and therefore should not be prescribed in the Code.

The paragraph now reads: "If an employee seeks a reasonable adjustment for their disability through a request for flexible working, the employer must consider this in line with its legal obligations under the Equality Act 2010. Employers must make reasonable adjustments to remove any disadvantage related to a person’s disability. The legal obligation to make reasonable adjustments is separate to the legal obligation to consider a request for flexible working."

Acas has set out further detail in its non-statutory guidance on flexible working.

Other points of clarification

The draft Code made various references to complying with different steps 'without unreasonable delay' and some respondents requested further guidance on the meaning of this. The Code now explains throughout that, for instance, the arrangement of meetings should take into account that all the steps involved in handling a request must be completed within the statutory 2-month period for deciding requests.

Acas has decided to shorten the title of the Code to "Code of Practice on requests for flexible working" in recognition that the legal provisions and good practice covered by the Code relate to the making and the handling of requests.

A total of 162 responses were received to the public consultation. This Annex sets out a list of the organisational respondents. 3 respondents wished to remain anonymous and are listed by category but not named.

Detail on individual respondents is provided in Annex B.

Organisations whose response was informed primarily by their role or mission

a) Employer representative organisations, employer associations or industry associations:

• Anonymised organisation A
• Association of School and College Leaders
• Business in the Community
• Federation of Small Businesses
• Processing & Packaging Machinery Association
• UK Hospitality

b) Trade unions or other employee representative organisations:

• Communication Workers Union
• Equity
• NASUWT
• National Education Union
• Prospect
• Royal College of Midwives
• Royal College of Nursing
• Trades Union Congress
• Transport Salaried Staffs' Association
• Undeb Cenedlaethol Athrawon Cymru
• University and College Union
• University of Birmingham Branch of University and College Union

c) Organisations representing the interests of disadvantaged or at-risk-of-discrimination groups.

General:

• Equality and Human Rights Commission

Age:

• Centre for Ageing Better

Disability and mental health:

• Learning Disability Wales
• Mind
• Scope

Women:

• Fair Treatment for the Women of Wales

Maternity Action:

• The Fawcett Society

d) Central and local government:

• Department for Environment, Food & Rural Affairs
• Department for Digital, Culture, Media and Sport (now Department for Culture, Media and Sport, name of submission preserved)
• Local Government Association
• Manchester City Council
• Surrey County Council

e) HR, legal professional or workplace standards-setting bodies:

• Chartered Institute of Personnel and Development
• Employment Lawyers Association
• Greater Manchester Good Employment Charter
• Institution of Occupational Safety and Health
• Law Society of Scotland

Organisations responding as an employer

a) Small and medium enterprises, grouped by Standard Industrial Classification (SIC) 2007 categories.

Section P: Education:

• Clever Clogs Day Nursery Ltd
• John Hampden Grammar School
• Saracens Multi-Academy Trust
• The Malling School
• Varndean College

Section A: Agriculture, Forestry and Fishing:

• Organic Farmers & Growers CIC
• Yorkshire Wildlife Trust

Section C: Manufacturing:

• Anonymised organisation B
• R&W Scott
• Simpson Print Ltd T/A Simpson Group

Section G: Wholesale and retail trade; Repair of Motor Vehicles and Motorcycles:

• Blackout
• SugarCraftShop

Section R: Arts, Entertainment and Recreation:

Africa in Motion Film Festival

• Bandofla Podcast

Section L: Real Estate Activities:

• CHP

Section N: Administrative and Support Service Activities:

• Anonymised organisation C
• Metis HR Ltd

b) Large organisations, grouped by Standard Industrial Classification 2007 categories.

Section P: Education & Section M: Professional, Scientific and Technical Activities:

• Horncastle Education Trust:
• University College London
• University of Leeds

Section Q: Human Health and Social Work Activities:

• Birmingham and Solihull Mental Health Foundation Trust
• NHS West Yorkshire Integrated Care Board
• Section C: Manufacturing:
• Whale Tankers

Section G: Wholesale and retail trade; Repair of Motor Vehicles and Motorcycles:

• Bidfood
• Section K: Financial and Insurance Activities:
• Phoenix Group

Section O: Public Administration and Defence; Compulsory Social Security:Valuation Office Agency:

• Valuation Office Agency

There were 100 individual respondents (comprising 62% of all respondents). (The values for counts and percentages are therefore identical).

In a small number of cases, organisational respondents also provided some individual-level information. This has been excluded from the data below.

The following tables set out the responses to the consultation questions on individual characteristics.

What is your age?

What is your sex?

Is the gender you identify with the same as your sex registered at birth?

Where do you live in the UK?

What is your ethnic group?

Do you have caring responsibilities?

Who do you care for?

Do you have any physical or mental health conditions or illnesses lasting or expected to last 12 months or more?

Select the option that best describes your current employment status

If you are employed, how many people work for your organisation?

This is the number of people working in the whole organisation, not just your site.

If you are employed, how would you classify your organisation?