Category Archives: Flexible working

Are You Ready For The Changing Face Of Employment?

FG DSC_0545Just a few months into 2017, emerging alternatives to traditional working patterns and arrangements are raising a number of interesting questions about the future direction of employment law.

Employers now operate in an employment arena where short-term contracts are commonplace and temporary positions and
freelance work is the norm!

While this operates to provide greater freedom and flexibility in relation to work for individuals concerns are starting to emerge that for some employers it creates opportunities for exploitation. The legislature and employment law courts now have a critical role to play in ensuring clarity and certainty for employers and individuals alike in avoiding unintended consequences.

Informal ways of engaging workers has existed for decades but arguably, technological advances make it easier for the informal workforce to tap into the mainstream working environment. This has led to concerns about employees within formal work patterns being disenfranchised and experiencing a gradual erosion of rights associated with traditional working arrangements.

Lost in the debate about the evils of non-traditional forms of working is the host of benefits that it can bring. Flexibility is the key argument of supporters. The ability of individuals to work whenever they want has a direct impact on earning income without undermining childcare, family obligations and medical priorities. Employers also benefit by being able to optimise resources while at the same time managing costs.

The legislature and the courts now need to provide confidence to business that where they engage individuals with the intention on both sides that they are genuinely self- employed, they are not subsequently declared workers or employees.

The genuinely self-employed do not have employment rights. Workers, a creation of European law enjoy fewer rights than Employees but are entitled to receive among other things the National Minimum wage and have a right to paid holiday. Workers can also claim for arrears of holiday pay, which can create very onerous financial burdens on businesses in the event that there is a large group of claimants.

There have been the much publicised decisions in the continuing saga of “employee v worker v self-employed” – this saga is set to continue in the light of the Uber decision that a group of 19 Uber drivers were entitled to receive the National Minimum Wage and holiday pay, being appealed. Whether the recently published Employment Status Review will help organisations determine the question is yet to be seen, but commentators have already pointed out that the review is dated December 2015!

Traditionally, organisations have relied on contracts and policies as a means of plotting a safe passage through the thorny landscapes mentioned above. And, whilst any employment lawyer worth their salt will advise that organisations should ensure they have in place up to date and relevant employment documentation (such as contracts and handbooks), is this enough? Very definitely “no”.  Long gone (if ever it was) is the time that organisations could brandish these documents in a “get out of jail free” way.

The Department for Business, Energy and Industrial Strategy has recently issued a statement which included the following “an individual’s employment status is determined by the reality of the working relationship and not the type of contract they have signed. Individuals cannot opt out of the rights they are owed, nor can an employer decide not to afford individuals those rights. Employers cannot simply opt out of the NLW by defining their staff as self-employed.” A sign of things to come?

For assistance with minimising the risk and guidance on proposed engagement agreements you can contact a member of the team at FG Solicitors on 01604 871143.

The Rio Olympics Are Approaching…What Should Employers do to Prepare?

22444484 - sport icons on computer keyboard buttons original illustrationThe countdown to the Olympics is now in earnest with the opening ceremony just a few days away. Over the coming weeks 306 events are scheduled to be held in Rio. If they have not done so already employers should be considering the potential effects of this four yearly event on their business.  A key priority is ensuring employee attendance. Unlike the 2012 Games in London, few employees will have tickets, but many will intend to watch the Rio Games on the television or internet.

What can employers do to prepare?

  • Decide on a policy for dealing with annual leave requests during the period the Games are on.  If the normal holiday request procedure is to apply, employers should remind employees of this.  If new procedures are to be put in place which simply cover the period the Games run for, highlight these to employees and ensure they are applied consistently.
  • Issue a general reminder of the absence notification/management procedures. That reminder to include a warning that employees could be subject to disciplinary procedures if they are not genuinely sick but provide sickness as the reason for their absence.  Absence levels should be closely monitored to enable the early identification of any high levels of sickness absence.
  • Flexible working may be a consideration which may enable employees to come in later or finish earlier. Considerations can also be given to whether employees can be permitted to swap shifts. Any flexible working arrangements should be carefully handled and recorded to ensure consistency of treatment and to ensure they run for the duration of the Games only.
  • Consider making available a television in a communal area to permit employees to view the Games at work.  This could offer an alternative to employees tempted to either “pull a sickie” to watch the games or to view them at work on the internet.  A number of employees simultaneously watching the games via an internet connection could cause disruption and negatively impact business continuity.  If making a communal television available, employers should highlight that employees will be expected to make up the time spent viewing the Games.
  • There may be an increased use of Social Media such as Facebook or Twitter or websites covering the Games. Employers should ensure that they have a clear policy regarding web use setting out that monitoring will take place, what use is permitted and what the likely sanctions are for a breach of the policy.

In summary…

In aiming for business continuity, it makes sense for employers to be:

  • Flexible – in altering working hours to accommodate viewing
  • Clear – in relation to expectations of leave requests, absence and performance
  • Communicative – discuss these matters with employees as soon as possible and continue to remind them of policies as the Games approach
  • Fair and Consistent  – in particular with respect to the way in which requests for time off are dealt with

Contact Details

If you would like more information or advice on business continuity planning for the Games, absence management or disciplinary procedures please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

FG Solicitors’ quick guide to key payments by employers

As part of our popular “quick guides” series, our team of employment law experts has produced an easy to use guide to key payments by employers. For more comprehensive advice on payments which should be made as well as when employees qualify for them, please contact a member of our team using the details below.

STATUTORY WEEKLY PAYMENTS DURING ABSENCES FROM WORK

April 16

Maternity/adoption pay prescribed rate (max)

£139.58

Paternity pay (max)

£139.58

Shared parental pay (max)

£139.58

Sick pay

£88.45

Lower earnings limit  (a)

£112.00

 

NATIONAL MINIMUM WAGE RATES (HOURLY)

April 16

October 16

Apprentices  (b)

£3.30

£3.40

Age 16-17

£3.87

£4.00

Age 18-20

£5.30

£5.55

Age 21-24

£6.70

£6.95

National Living Wage (Age 25+)

£7.20

£7.20

 

KEY COMPENSATION LIMITS

April 16

Week’s pay

£479

Statutory redundancy payment: up to 30 weeks’ pay

£14,370

Unfair dismissal basic award: up to 30 weeks’ pay

£14,370

Unfair dismissal compensatory award  (c)

£78,962

Breach of right to be accompanied: up to 2 weeks’ pay

£958

Breach of flexible working regulations: up to 8 weeks’ pay

£3,832

Failure to give written particulars of employment: 2 or 4 weeks’ pay  (d)

£958 or £1,916

Breach of contract claim in employment tribunal

£25,000

Failure to inform or consult: collective redundancy  (e)

90 days’ pay

Failure to inform or consult: TUPE transfer  (e)

13 weeks’ pay

…….

Key:

(a). To qualify for these payments, in addition to other criteria such as length of service, the employee must earn the same or more than the weekly lower earnings limit (“LEL”), which is set by the government. The LEL from April 2016 is £112.00 before tax.

(b). Only applicable to those under 19 or in the first year of their apprenticeship. For all other apprentices, refer to age bands.

(c). Maximum compensatory award is lower of statutory limit or 52 weeks’ actual gross pay at the time of dismissal. Limit does not apply where reason for dismissal or redundancy selection is carrying out health and safety activities or making a protected disclosure.

(d). Please see our guide to essential contracts.

(e). Calculated by reference to employee’s actual gross pay – the limit on a week’s pay does not apply.

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

FGazette July 2014

140701 ThumbnailWelcome to the latest edition of FGazette! The quarterly newsletter of FG Solicitors – Lawyers for today’s employers.

We are delighted to present the July edition of the FGazette, which looks at the latest changes to flexible working; whistleblowing and restrictive covenants.

If you have any problems viewing this link, please contact us on 01604 871143 or fgmedia@fgsolicitors.co.uk

World Cup 2014… what should employers do to prepare?

With just a few days to go before the World Cup kicks off, if they have not done so already employers should be considering the potential effects of this latest major sporting event on their business.  The main issues for employers will be requests for annual leave, sickness absence, and website use during working hours.

What can employers do to prepare?

  • Decide on a policy for dealing with annual leave requests.  If the normal holiday request procedure is to apply, employers should remind employees of this.  If new procedures are to be put in place temporarily, highlight these to employees in good time and ensure that they are applied consistently.
  • Remind employees of the absence notification/management procedures and the potential that they could be subject to disciplinary procedures if they are not genuinely sick but provide sickness as the reason for their absence.  Absence levels should be monitored during this period to identify particularly high levels of sickness absence or even post match hangovers.
  • Flexible working may be a consideration, allowing employees to come in later or finish sooner but agreeing when this time can be made up. Employees should also be permitted to swap shifts. This approach should be applied consistently and employees should be made aware that any change to their normal working arrangements should be agreed in advance.
  • Allow staff to watch the television or listen to the radio in a communal area.  This could offer an alternative to employees tempted to either “pull a sickie” to watch the games or to view them at work on the internet.
  • There may be an increased use of Social Media such as Facebook or Twitter or websites covering the World Cup. Employers should ensure that they have a clear policy regarding web use setting out that monitoring will take place, what use is permitted and what the likely sanctions are for a breach of the policy.
  • Whilst watching a match some employees may enjoy a drink or two. Employees should be reminded that if they are found to be under the influence of alcohol or drinking at work, they will be subject to disciplinary action.  Any no alcohol policy should be clearly publicised.

In summary…

In aiming for business continuity, it makes sense for employers to be:

  • Flexible – in altering working hours to accommodate viewing.
  • Clear – in relation to expectations of leave requests, absence and performance.
  • Communicative – discuss these matters with employees as soon as possible and continue to remind them of policies.
  • Fair – in particular with respect to the way in which requests for time off are dealt with.

Finally, we would emphasise that employers should ensure consistency in their treatment of employees.

Contact Information

If you would like any further advice on absence management or disciplinary procedures please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Employment Law Update Seminar – June 2014

Employment Law Changes 2014Employment Law Update 2014 – An Employer Focused Update

Date: Thursday 5th June 2014

Time: 8:00-10:00am              Cost: Free

Venue: FG Solicitors Offices, 2 Deanery Court, Grange Farm, Preston Deanery, Northampton, NN7 2DT

If you have managed to keep on top of the numerous employment law changes this year, you are either a genius or you have too much time on your hands.  For everyone else, you will benefit by attending our employer focused seminar on key employment law changes by showing how they would work in practical case-study examples.  The key changes we will cover include:

  • Flexible working – requests for all
  • Employment Tribunals – penalties, fees and mandatory Early Conciliation
  • TUPE – more flexibility
  • Illegal working  – increased penalties
  • Whistleblowing – public interest test
  • And much more…

To avoid disappointment reserve your place by completing the booking form below:

To book your place at our seminar, please contact us using the details below:

info@fgsolicitors.co.uk

+44 (0) 808 172 93 22

We look forward to seeing you at our next seminar.

If you feel this seminar would benefit other colleagues or companies please feel free to forward the details on.

Extending Flexible Working – A Free For All!

Flexibility

SUMMARY: The Children and Families Act 2014 is extending the right to request flexible working.

Current position

Until June 2014 only parents of children under 17, or 18 in the case of parents of disabled children, and those caring for an adult can apply to work flexibly under the statutory flexible working regime.

The Children and Families Act 2014

On 30 June 2014, the Children and Families Act 2014 will extend the right to request flexible working to all employees who have 26 weeks’ continuous service. This means that all employees who satisfy the continuous service requirement will have a statutory right to ask their employer for a change to their terms and conditions of employment to work flexibly. This could for example include homeworking, part time working, flexi time, job sharing or shift work.

A new duty to deal with requests in a “reasonable” manner

Those employers who have managed flexible working requests before will be aware that there is a prescriptive statutory procedure with defined deadlines, which has to be followed. This procedure will be replaced with a duty to deal with requests in a “reasonable” manner.

To support employers in ensuring that requests are dealt with reasonably,   there will be an ACAS Code of Practice (Handling in a reasonable manner requests to work flexibly) and guidance. In summary, the draft Code and guidance suggests as follows:

  • An employer should arrange to meet with the employee to discuss their request once received unless it is happy to accept the proposal.
  • Consideration should be given to allowing the employee to be accompanied by a trade union representative or a work colleague.
  • Employers should weigh up the benefits of the request against any adverse impact on the business. Possible outcomes could be:
    • compromise agreed; or 
    • request rejected, on one of the eight specified “business reasons”.

If the request is rejected employees should be advised of the “business reason” for this:

  1. the burden of additional costs;
  2. an inability to reorganise work amongst existing staff;
  3. an inability to recruit additional staff;
  4. a detrimental impact on performance;
  5. a detrimental impact on quality;
  6. detrimental effect on ability to meet customer demand;
  7. insufficient work for the period the employee proposes to work; and
  8. a planned structural change to the business.

(Notably, these are the eight business reasons provided for under current legislation.)

  • Employees should be advised of the decision in writing together with any right of appeal.
  • The consideration process including the right of appeal must be completed within 3 months. If it is going to take longer any extension should be agreed with the employee.
  • Employers must ensure that in coming to their decision they do not inadvertently discriminate against an employee.

Employees can only make the request once in a 12 month period.

Possibility of a trial period

Usefully the ACAS guidance suggests that where an employer is unsure about the arrangement requested, instead of rejecting the application, it could agree a temporary arrangement or a trial period. So that there is certainty, this must be communicated in writing.

Competing requests

Employers will be required to consider each application on its own merits. One area of concern is that there is no guidance on how employers will deal with competing applications and accusations of unlawful discrimination when an application is rejected. There is also no provision for prioritisation for those who have caring responsibilities.

Next step for employers

The forthcoming changes provide a useful opportunity for employers to refresh their knowledge and reflect on how they will respond to flexible working applications. A good place to start is to introduce a flexible working policy or review of an existing policy, to ensure that there is clear current guidance for both employees and manager employers. Broader operational issues should also not be overlooked. For example, if home working is introduced there should be a health and safety risk assessment and consideration needs to be given to the issue of data security.

The prospect of more employees seeking a different way of working may appear daunting, particularly for smaller organisations.  Employers when deciding how to respond should however not overlook the benefits of allowing staff a better work life balance, which can have a significant and positive effect on attendance, productivity and retention.

Contact Details

For more details about an employee’s right to work flexibly and introducing a Flexible Working Policy please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

The Children and Families Bill Update

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SUMMARY:  The Children and Families Bill 2012-13 (the Bill) is currently being reviewed by Parliament. The first reading took place at the House of Commons on 4 February 2013; there was no debate on the Bill at that stage.

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