Changes to Flexible Working Requests in the Workplace

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From 6th April 2024 employees will be able to request flexible working from the first day of a job. Currently there is a minimum period of service required with an employer before being able to make a request.

What is flexible working?

A flexible working request could include asking for a change relating to:-

  • The hours worked.
  • The times required to work.
  • A change to the place of work, including the ability to work remotely and/or from home.

There is no limit to the type of flexible requests that could be made, and the different variations.

What other changes are there?

There is no limit to the type of flexible requests that could be made, and the different variations.

At present the employee has to explain, when making a request, how they consider the flexible working being requested that could impact the employer and what effect it would have. This is no longer mandatory but considered advisable.

From April there will be a requirement that employers consult with an employee before refusing a request.

When can a request be declined?

Employers remain obliged to deal with flexible working requests in a reasonable manner. This means that a flexible working request can only be declined on certain statutory grounds as follows:-

  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to reorganise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during the periods the employee proposes to work; or
  • Planned structural changes.

If a request is refused then an appeal should be made available to the employee. There are strict time limits as to when any request should be dealt with by the employer.

What is the impact of an employer failing to deal with a request correctly?

If an employer fails to properly deal with a flexible working request then the employee can bring an Employment Tribunal claim against the employer, including on the following basis:-

  • The employer has failed to deal with the application in a reasonable manner.
  • The employer has failed to notify the employee of the decision within the decision period.
  • The employer has rejected the application for a reason other than one of the stated statutory grounds.
  • The employer’s decision to reject the application was based on incorrect facts.
  • The employer has treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.

A claim must be brought by an employee to an Employment Tribunal within three months of the date upon which the claim arose. The remedies available to the Employment Tribunal are limited. However, where a Tribunal finds that a claim is well founded it must make a declaration to that effect and may make either or both of the following:-

  • An order for reconsideration of the request. If it does this the date of the Tribunal’s order will be treated as the date of the request.
  • An award of compensation to be paid by the employer to the employee, of such amount as the Tribunal considers just and equitable, up to the permitted maximum of 8 week’s pay.

From the above it will be noted that it is very important that employers understand their legal obligations with regard to considering flexible working requests. Also, employees need to understand their rights and entitlements.

Our Specialist Employment Solicitor, Jennifer Carpenter, can advise employers and employees in relation to issues relating to flexible working. After all, in this day and age when everyone is so busy, and after a period of hybrid working as a result of the Covid 19 pandemic, flexible working requests are becoming more and more common place.

Please contact us for specific advice with regard to your circumstances, the above being a summary only of the provisions as of 6th April 2024.

Employment Law Update April 2024

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Greater protection for those that are pregnant or on maternity leave, adoption leave and shared parental leave from being made redundant.

New Regulations come into force on the 6th April 2024, the Maternity Leave, Adoption Leave and Parental Leave (Amendment) Regulations 2024. These Regulations extend the current legal protections that are in place from redundancy. Currently, where a redundancy situation arises when an employee is on relevant leave (i.e. maternity, adoption or shared parental leave) the employer is required to offer the employee a suitable alternative vacancy where one is available, over and above any other colleague. This protection will now be extended by the amended regulations so that it applies:-

  1. During pregnancy – the redundancy protection will start when the employee tells their employer about the pregnancy.
  2. There will be a period of additional protection after maternity leave. For those taking maternity leave the additional protected period will be 18 months after the baby is born. For those taking adoption leave the additional protected period will end 18 months after the placement of the child. For those taking six or more consecutive weeks of shared parental leave the additional protected period will end 18 months after the date of birth of the child.

These Regulations mean that employers will need to take extra care when considering redundancy situations where they have an employee afforded this protection. Failing to comply with the regulations is likely to amount to unlawful discrimination and any dismissal arising as a result of a redundancy when the regulations have been ignored would give rise to an unfair dismissal claim.

Jennifer Carpenter, our Specialist Employment Solicitor can give further legal advice to employers and employees about the Regulations and redundancy situations generally and can be contacted at [email protected]

Is A Worker Or Employee On Long-Term Sick Still Entitled To Be Paid Statutory Holiday Entitlement?

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A worker or employee on long term sick is entitled to be paid holiday entitlement under the Working Time Regulations 1998 even though they are absent from work.

Holiday entitlement continues to accrue even if an employee is absent due to sick leave. On return to work the employee is entitled to take the paid holiday which has accrued that they have not taken during the period of sickness absence.

If he or she is dismissed or leaves the employment before taking any accrued holiday he or she will be entitled to pay in lieu.

Case law has even established that when employment is terminated by the death of a worker/employee his or her right to be paid for accrued but untaken holiday under the Working Time Regulations does not expire but passes to the deceased’s estate.

An Increase In The Value Of A Gift In A Will Did Not Make The Will Invalid

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The case of Skillett v Skillett in the High Court this year has held that a change in the value of a gift in a Will did not mean the person making the will had lacked the necessary capacity to understand nor approve of the Will.

The Will left everything to Mr Skillett senior’s wife but if she pre-deceased him it left a plot of land to one son and cash gifts of £50,000 to the deceased’s three other adult children. The Will was made in 2011 and at the time the plot of land was worth about £50,000. However, by the time the deceased died it was worth £110,000. Therefore, one of the sons brought a claim arguing that his father lacked testamentary capacity and/or did not know and approve the contents of his Will.

The Judge said in the case that just because there was an inequality with value of the gifts at the time of death did not make the terms of the will irrational, nor invalidate it. There was evidence that Mr Skillett senior knew and understood the terms of his will and approved it.

If you instruct us to prepare your Will we will ensure we consider fully with you any risks associated with the fluctuation in value of testamentary gifts.

If you have not been provided for in a Will, or inadequate financial provision has been made for you, then Jennifer Carpenter as solicitor and partner in our Dispute Resolution department can advise you whether you have a claim.

All enquiries to [email protected].

Vicarious Liability: Employer not liable for injury caused by practical joke in the workplace

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Case Update – Employer not liable for injury caused by practical joke in the workplace (Court of Appeal)

In the case of Chell v Tarmac Cement and Lime Limited, [2022] EWCA Civ 7 (12 January 2022) the Court of Appeal considered whether an employer was responsible for a serious injury sustained by a third-party contractor, caused by a practical joke of one of its employees.

Background

Tarmac engaged Mr Chell at a quarry site. Mr Chell had reported tension between external contractors and employees of Tarmac to his supervisor. Subsequently, an employee of Tarmac played a prank on Mr Chell. He brought explosive pellets into work and hit them with a hammer proximate to Mr Chell’s ear. The explosion resulted in Mr Chell suffering a perforated eardrum, hearing loss and tinnitus. Mr Chell unsuccessfully claimed damages for personal injury from Tarmac in the County Court, arguing that it was vicariously liable for its employee’s actions, and directly liable for breaching its own duty of care and failing to provide a safe working environment. The High Court upheld the County Court decision. Mr Chell appealed to the Court of Appeal. Dismissing the appeal, the Court of Appeal confirmed that there was not a sufficiently close connection between the act which caused the injury and the employee’s work to make it fair, just and reasonable to impose vicarious liability. Among other things, the real cause of Mr Chell’s injuries was the explosive pellet, which was not Tarmac’s equipment and not used in the employee’s work. It could not be said that Tarmac authorised what the employee did, nor was his act an unlawful mode of doing something authorised by Tarmac. The wrongful acts were not done in the course of employment. Regarding breach of duty of care, there was no reasonably foreseeable risk of injury arising from the prank and the reported tension did not suggest potential violence. Even if such a risk of injury had been established, it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from horseplay. Employees were expected to carry out their tasks using reasonable skill and care, and by implication to refrain from horseplay. Common sense decreed that horseplay was inappropriate at a working site.

Comment

Vicarious liability is when the employer is held legally responsible for the acts/omissions of its staff is causing damage or injury. There have been a number of cases recently on vicarious liability and it is clear that the courts are taking a firm line on what liability an employer has for the actions of its employees/contractors. It is not enough to say that they were given the opportunity to do so because of their employment. Where those actions are committed during the course of a claimant’s employment but it is not reasonable for that kind of action to have been taken into account in a risk assessment then the claim will likely fail. Another example can be found in the case of Mohamud v WM Morrison Supermarkets 2016. In this case, Mr Mohamud visited a petrol station owned by Morrisons where he was racially abused and assaulted by an employee of the Company. At first glance it might not be obvious why the Court of Appeal found against Mr Chell, when it was decided in the Mohamud case that Morrisons were liable for assault caused by its employee on a customer. The difference between the two cases is that, Mr Mohamud assaulted a customer during the course of his normal duties: namely, serving a customer. Whereas in the Chell case, Mr Chell was assaulted during the course of a practical joke, outside of the normal activities of the wrongdoer in question. The Judgment serves to re-enforce the general principle that an employer will only be vicariously liable for the actions of their employee when the wrongful conduct is closely connected with acts the employee was authorised to do. Anton Bilinski has many years’ experience representing Claimants in relation to various claims for personal injury, including those against employers. Anton can also advise whether an employer may be vicarious liable. Working with Jennifer Carpenter, Partner, employment law advice can be given about these circumstances. For employers it is always a good idea to have a clause in an employment contract making it clear that the employee will not commit unlawful acts or engage in any inappropriate behaviour whether meant in jest or otherwise. Whether you are an employer or employee contact us for advice at [email protected]

Cuts to sick pay for unvaccinated employees

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You may have seen in the media that some large organisations, like Ikea, Next and some Water authorities have amended their sickness absence policies to state that those employees that have to self-isolate as a result of being unvaccinated and a close contact of a positive Covid-19 case will not receive pay. Self-isolation is only a requirement currently following close contact if someone has not received two vaccinations and is not clinically exempt from vaccination. Ikea do have “special mitigating” circumstances in their policy as to when they would allow sick pay.

These organisations are still paying sick pay if an unvaccinated employee contracts Covid-19 and is absent from the work place.

Despite this, these decisions do however, have the potential for discrimination or breach of contract claims by the affected employee. We will have to see if any claims are brought as a result.

We can advise and represent employees and employers in relation to employment related unlawful discrimination.

Contact [email protected] to arrange a consultation with Jennifer Carpenter, our solicitor and managing partner who has 20 plus years’ experience of practicing employment law.

The End Of Furlough

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Sitting at my laptop at midnight on Monday 22nd March 2020 learning about “furlough” provisions for the first time felt so surreal as an employment lawyer. The idea that you could ask your employees to go home and they would get paid (albeit reduced pay) was so novel. It was unclear when the Government would implement a method for employers to recoup the salaries paid at that time. Now we are rapidly approaching the end of the Coronavirus Job Retention Scheme (CJRS) introduced by the Government to pay furloughed workers and employees.

The whole purpose and intention of the CJRS was to assist employers to preserve as many jobs as possible so redundancies were not made. However, the added incentive of the Job Retention Bonus where the Chancellor originally announced in July 2020 that there would be £1,000 bonus paid to employers per every employee brought back was withdrawn when CJRS was extended. Similarly, the Job Support Scheme that was previously intended to replace CJRS has been “postponed”. It is not clear at this time what will happen with either.

Any claims under CJRS for September 2021 pay must be claimed by no later than 14th October 2021 by employers.

What are the likely consequences now the CJRS is ending on 30th September 2021?

  • We may see an increase in redundancies. Redundancy is a permitted fair reason to dismiss but only if there is a genuine redundancy situation and the employer makes the decision to dismiss for that reason fairly.
  • Employers may seek to keep an employee/worker’s pay the same as whilst on furlough – whether they can do this will depend on the wording of the contract of employment and any written Furlough Leave Agreement that was put in place. In most situations, however it is likely to result in a breach of contract/constructive dismissal claim by the employee.
  • Employees being asked to reduce hours – again, this is unlikely to be permissible unless the employee gives express consent.

The Chartered Institute of Personal Development (CIPD) carried out a survey that showed that 22% of employers had made changes to their employee’s terms and conditions since the start of the Covid-19 pandemic. The most common changes were to workplace, hours and pay.

Whether you are an employee facing changes to your employment circumstances; or an employer wondering what to do next, and more importantly, what the law will permit you to do, then please get in touch with us for specialist employment law advice.

[email protected]

Jennifer Carpenter
Solicitor – Employment law specialism
Managing Partner

10 Facts About Furlough Leave

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The Government’s Coronavirus Job Retention Scheme (CJRS) has been extended to the end of September 2021. However, from 1st July 2021, employers can only reclaim up to 70% of wages for hours not worked (up to the cap of £2,187.50 a month). Nevertheless, the employer must continue to pay at least 80% of the employee’s wages (up to the cap of £2,500 a month) for any furloughed hours. Therefore, from the start of next month employers will have to contribute 10% (up to the cap of £312.50 a month). It is optional whether an employer chooses to top up an employees’ wages above the 80%, but this cannot be reclaimed.

Did you know …

  1. There is no minimum period of furlough leave.
  2. Employees, directors and workers can be included in the Scheme.
  3. Decisions made by an employer as to who should be furloughed can amount to unlawful discrimination if the selection is based on any “protected characteristic” under the Equality Act 2010 (e.g. age, sex, race, religion, disability).
  4. Any reduction in pay whilst on furlough must be agreed with the employee, otherwise it amounts to a breach of contract.
  5. Holiday entitlement will continue to accrue for an employee during furlough leave.
  6. An employer can force an employee to use holiday entitlement whilst on furlough leave.
  7. Employers can carry out a redundancy consultation with employees whilst they are on furlough leave.
  8. Employees can be made redundant whilst on furlough leave, or at the end of furlough leave.
  9. If an employee receives a payment in lieu of their notice entitlement upon termination of their employment the CJRS cannot be used to help pay this.
  10. For the purpose of calculating an employee’s entitlement to various statutory payments, including redundancy pay, this must be with reference to their normal pay, not the pay received whilst on furlough leave.

For more detailed advice, whether you are an employee, worker or employer please consult with our employment specialist – Jennifer Carpenter, solicitor and managing partner.

 

Redundancy and Furlough Leave

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The Coronavirus Job Retention Scheme (CJRS) has been extended by the Government until 30th September 2021. However, from 1st July 2021 the level of the grant will be reduced and employers will need to contribute towards the cost of employees on furlough leave. Any employee/worker on furlough leave must receive as a minimum 80% of their pay, up to a maximum of £2,500 per month. In July employers will need to pay 10% and then 20% in August and September.

The CJRS is designed to help prevent staff from losing their job if they are unable to work as a result of the Covid-19 pandemic in circumstances where they would otherwise have been made redundant. There is, however no right to demand furlough leave from an employer, and no obligation upon an employee to agree to furlough leave if proposed by an employer. Guidance has already made it clear that furlough leave ,and therefore the CJRS, can be used for employees shielding, unable to work due to child care or other caring commitments. Presently, the scheme is most likely to be used by those in the hospitality, beauty and retail sectors but as the Government’s Roadmap moves forward this should reduce those unable to work due to pandemic related restrictions.

Does furlough leave have to be at full pay?

No, but for furlough leave to be lawful, and not in breach of contract, the staff member must give express consent, including to a reduction in their pay. An employer can choose to top up the pay to the full amount if they wish, but is only a legal requirement of CJRS that the employee receives a minimum of 80% pay (subject to the cap).

Does furlough leave have to be full time?

Since July last year furlough can be used flexibly so staff can work some of their contracted hours, or be on a rota system whereby they take it in turns with colleagues to be on furlough leave, or be working.
Can redundancies be made whilst staff are on furlough leave?
An employee can be made redundant whilst on furlough.

What is the position with regard to notice?

Full notice must be given and at full pay.

Is the rate of pay for redundancy affected for those on furlough leave?

Statutory redundancy payments for those that are eligible must be calculated by reference to a normal week’s full gross pay, not furlough pay rates.

If you are considering making redundancies then we can give you the legal advice and guidance to enable you to adhere to the statutory requirements and procedures; or to help explore alternatives with you. Please call us on 01799 523441

Uber Drivers Are Workers

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In a very recent February 2021 Supreme Court decision (Uber and others v Aslam and others [2021] UKSC 5), the employment tribunal decision that Uber drivers are workers within the meaning of UK employment legislation has been upheld. The decision reached was predominantly based on the degree of subordination and control to which the drivers were subjected by Uber making them workers, not self employed individuals. The court has also determined that the drivers’ working time included when they were logged in to the Uber app within the area in which they are licensed to operate and ready and willing to accept trips.

There has been an increase in the number of cases where it is necessary to determine whether an individual is either self employed or a worker. Many of these cases have involved couriers and drivers. Proving worker status is important to assert various rights that a worker would have, for example entitlement to receive national minimum wage and entitlement to paid annual leave. “Worker” is defined under section 230(3) of the Employment Rights Act 1996. However, Tribunals will not just look at how an individual has been labelled by the parties but the reality of the situation in practice.

This case is the fourth time the courts have reached the same conclusion regarding worker status. The significance of this case is that there is no further right of appeal from the Supreme Court and Uber must now deal with a situation whereby its drivers are workers. The financial impact for the company is likely to be significant. It may even change the way in which Uber can operate.

Now that worker status has been established this case will return to the employment tribunal, to determine the compensation due to the drivers in respect of their claims for holiday pay and unlawful deductions from their wages.

What can be learnt from this case? The courts will look to protect workers in spite of the contractual documentation they sign. If employers use complicated arrangements in an attempt to disguise the true nature of the working relationship it is likely to fail.

We can help by providing advice on the status of working arrangements for employers, employees, workers and contractors. All employers should be aware of any risk they may carry of having worker status claims brought by those that undertake work for them purporting to be on a self employed basis.

Contact our employment specialist Jennifer Carpenter, Solicitor and Managing Partner, for more detailed and specific advice.