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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.

Brexit and the Implications for Employment Law in the UK

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The UK left the EU on the 31st January 2020 following ratification by the UK and the EU of the Withdrawal Agreement. A transition period then applied until 31st December 2020. During this time for most purposes the UK was treated as if it were still a member of the EU. Therefore, most EU law continued to apply to the UK. It is the European Union (Withdrawal) Act 2018 that ended the supremacy of EU Law in the UK and prepared the legal framework for the UK to withdraw from the EU. The Act meant a conversion of EU law into UK law as it stood at the moment of exit. Meaning that any UK Laws derived from the EU remained applicable. Therefore, this means that any employment legislation derived from the EU remains applicable in the UK, but just on a different constitutional basis.

There is now an end to the principle of the supremacy of EU law to the effect that it no longer applies to any UK enactment or rule of law passed or made on or after 31st December 2020. The supremacy of EU law continues to apply in the UK where there is an inconsistency between an EU directive and UK domestic legislation and the directive was implemented before the end of the transition period, any inconsistency in the law should be resolved in favour of the EU directive.

Regulations have been enacted that have determined that the Court of Appeal in England and Wales are not bound by retained EU case law. This does, however, raise concerns with regard to creating uncertainty in relation to employment law matters. How to interpret retained EU law since the end of the end of the transition period on 31st December 2020 is tricky to determine.

Decisions will now rest with the UK Government as to whether it should retain, amend or repeal the UK employment law that has been derived from the EU. The most likely areas of law to be subject to change are:-

  • The Working Time Directive 1998. The UK has the Working Time Regulations 1998 that govern working time and holidays. There may be an overhaul of the way holiday pay works as this is currently a complicated area due to the effects of several previous European Court of Justice decisions.
  • Agency Worker Rights – This is an area that could see an overhaul as the Agency Worker Regulations 2010 are quite complex and unpopular.
  • The Transfer of Undertakings Protection of Employees Regulations (TUPE) provide the rules for business transfers. These can be difficult to apply in practice.
  • The Equality Act 2010 – this deals with discrimination legislation in relation to workers’ protections. The Government has already indicated that it does not want to reduce the protections as set out in this legislation. However, there may be some changes to discrimination based claims.

As it is early days since Brexit only time will tell as to how exactly this will impact on the future of employment law in the UK. Watch this space …

For all employment law related advice and representation please contact Jennifer Carpenter solicitor and partner.

Employment Law Changes – Are You Ready?

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From 6th April 2020 all new employees, but also workers/joiners to a company, will have the right to a written statement of terms on or before the first day of employment, whereas it is currently for employees only and within two months of employment starting. This change has been brought about by an amendment to the Employment Rights Act 1996 as a result of the introduction of The Employment Rights (Employment Particulars and Paid Annual Leave)(Amendment) Regulations 2018.

Do you know what needs to be included in a written statement of terms? It does not necessarily have to be a formal contract of employment but there is prescribed information that must be provided, much sooner than previously and now to workers as well as employees.

There is a right for employees and workers to bring Employment Tribunal claims if the organisation engaging them fails to do this.

The Government has said that the intention is to ensure that workers can access fair and decent work, that both employers and workers have clarity on the employment relationship, and that the enforcement system is fair and fit for purpose. Above all, the direction of travel is to protect vulnerable workers and improve workers’ understanding of their rights.

The best way to ensure compliance is to have a properly drafted contract of employment that is ready to pass to a worker or employee at the latest on the day they start work. If you ask us to prepare the contract we can include all the requirements and information that an employer is obliged to give. The new Regulations include additional information that must now be provided. For example, probationary period details and days of the week worked must be provided for those starting work after 6th April.

There is information that the Regulations state the employer can choose whether to put in the main written statement of terms (contract) or in “reasonably accessible document(s)” but the following information must be provided:-

  • Terms for absence due to incapacity and sickness and the position regarding sick pay.
  • The notice periods for termination.
  • Information relating to grievances and disciplinary.
  • Terms relating to pensions and pension schemes.

Even if there is not a legal requirement to contain certain information in the written statement of terms it may be advisable to have additional terms to protect your business, for example post termination restrictions.

Contact us to arrange an appointment with Jenny Carpenter, specialist employment solicitor and partner to discuss your requirements.

Discrimination Claims Against Employers.

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It is the Equality Act 2010 that establishes the ability to bring action for unlawful discrimination. It is only in relation to a “protected characteristic” that action can be brought. The reason for the unfavourable treatment/discrimination must be due to a “protected characteristic” for the individual to be afforded protection under the act. So what is a “protected characteristic”? The Act dictates that the following are:-

  • Age
  • Disability
  • Gender reassignment
  • Marriage and Civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Each protected characteristic has a statutory definition under the Act and therefore must be looked at carefully before unlawful discrimination can be established. Interpreting the meaning of each protected characteristic gives rise to various case law.

A recent case heard by an Employment Tribunal on 10th September 2019 (Conisbee v Crossley Farms Ltd and others) held that vegetarianism was not a “belief” qualifying for protection under the Act. Mr Conisbee alleged that he had suffered discrimination on the ground of religion or belief, his belief being vegetarianism. The Employment Tribunal held that although his belief was genuinely held and was worthy of respect in democratic society it failed to meet the other legal hurdles for protection under the Act. In their judgement the Tribunal ruled that it did not have a similar status or cogency to religious beliefs.

This decision does not have to be followed by other Tribunals in the future but is an interesting approach to what amounts to a “belief” for the purpose of the Equality Act 2010.

Who is protected? Under the Act there is a wide range of potential claimants for discrimination claims. This includes the following:-

  • Employees
  • Job applicants
  • Contract Workers
  • Agency Workers
  • The police
  • Individuals in a business partnership

If you consider you have suffered unlawful discrimination then please seek our advice. Do not delay. There are strict time limits for bringing a claim to an Employment Tribunal, whereby claims must be brought within three months of the date the discrimination occurred.

Jennifer Carpenter
Employment Specialist solicitor

Employment Tribunals of England and Wales Latest Statistics

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The Employment Tribunals of England and Wales have reported the last quarter’s statistics for April to June 2018 for claims issued within the Employment Tribunals.

There has been a 165% increase in claims.  This is thought to be  attributed wholly to the fee regime being abolished.  The result though is that there is a shortage of judges to hear cases.  In some regions cases are not being listed for a final hearing until 12 to 18 months after receipt of the claim (ET1).  There is a recruitment drive for fee paid judges to help in  alleviating this problem.

At this time of very busy Tribunals it would appear more than ever that attempting other means to resolve a dispute or claim with an employer is more advantageous than waiting the inordinate amount of time to have a case heard.

I have the experience and skill to negotiate settlement of claims, particularly if dealing with the details of the claim from early on in the case. I undertake this work for both employees and employers.

Refund of Employment Tribunal Fees

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The Lord Chancellor has provided an update on employment tribunal fees to the House of Commons Justice Committee. A large number of potentially eligible people have apparently failed to apply since the refund scheme was rolled out in November last year, following the abolition of Tribunal fees. The Ministry of Justice is therefore writing to affected people in order to raise awareness. The first batch of 2,000 letters was issued on 9 April 2018.

If you paid a Tribunal fee in the past then it is likely you can apply for a refund. See our previous blog dated 24th October 2017. Should you require assistance with this process then please contact us.

Employment Law Update Winter 2017

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We are pleased to bring you our Winter 2017 Employment Law update

Please click on the image below to download your copy.

Adams Harrison Employment Law Newsletter Winter 2017 Image

Recover Tribunal Fees Previously Paid

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Following the Supreme Court judgment on Employment Tribunal fees an announcement has now been made on the first stage of the scheme  to be reimbursed fees paid whilst the fee regime was operational.

Up to around 1,000 people will now be contacted individually and given the chance to complete applications before the full scheme is opened up in the coming weeks.

If you paid a fee as well as being refunded this you will be entitled to interest of 0.5%, calculated from the date of the original payment up until the refund date.

The opening phase of the refund scheme will last for around 4 weeks. If you wish to register an interest in being refunded Tribunal fees paid we can assist and pre-register your refund request.  Contact us at [email protected].

Employment Tribunal Fees Abolished

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A fee regime was in place from 29th July 2013 whereby fees had to be paid upon issuing a claim before an Employment Tribunal and upon the case going to a full trial. The fee for issuing a claim was either £160 or £250, depending on the type of claim. The hearing fee was £230 or £950. On 26th July 2017 a judicial review case was heard at the Supreme Court brought on an application by Unison against the Lord Chancellor. The Supreme Court declared that fees in the Employment Tribunal and Employment Appeal Tribunal were unlawful, under domestic and EU law. It quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Supreme Court determined that the fee regime effectively prevented access to justice and was a breach of common law and constitutional rights. It was also held that it was indirectly discriminatory to have fees contrary to the Equality Act 2010.

As a result of this case all claims brought before an Employment Tribunal from now on will not incur a fee. It also means that that those Claimants that incurred fees at anytime during the four year period whilst the fee regime was in place are entitled to a refund. The detailed arrangements for recovering previously paid fees was due to be announced in September but the scheme has yet to be revealed.

There is now the potential for reinstatement of claims that were rejected by the Employment Tribunal as a result of a failure to pay the correct fee. There is also legal argument for allowing claims out of time on the basis that the Claimant could not afford to bring the claim when fees, that have now been held to be unlawful, were in place.

If you have any queries about fees or past or current claims our employment law expert, Jenny Carpenter can assist.

Possible Implications Of Brexit For UK Employment Law

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Much of the employment law with have in this country comes from the EU, including:- discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers.

Whilst it would now be possible for the UK government to repeal this it is unlikely to do so and in fact EU law will probably continue to significantly influence employment law in this country.

There are various reasons for this:

  • Some employment law was implemented in the UK before the EU made it law. For example, UK equal pay, race and disability discrimination laws, right of return after maternity leave – all UK law.  It is highly unlikely therefore that the government will suddenly decide to reverse this.
  • Some employment law provides for rights that go further than what the EU requires.  For example, UK family leave rights.
  • Many of the employment rights that exist are generally considered to be a good thing and therefore even if it is solely based on EU law it is unlikely that the government would repeal these.
  • The government is likely to determine that there is a requirement to continue to observe EU law even though we are not in the EU.  This will be due to a need to stay in some sort of relationship with the EU. Any trade agreement negotiated with the EU is likely to be dependent on it.

It is much more likely that the government will gradually modify EU derived employment law to make it more applicable to UK employers and employees than repeal it altogether.  As leaving the EU is a two year process nothing will happen quickly.

Once we have left the EU the European Courts of Justice (ECJ) will no longer have jurisdiction over UK courts and decisions made by the ECJ will not be binding on courts in this country.  The decisions however already made by UK courts, taking into account EU law and ECJ decisions will remain binding unless it can be shown that the facts in any particular case are materially different.  It is likely, however that UK courts will continue to at least consider ECJ decisions where relevant to cases being determined here.

So, in summary nothing drastic is going to happen to employment law as a result of Brexit and certainly not in the short term.

 

Jenny Carpenter
Solicitor
Employment law specialist