HR Breakfast - Russell-Cooke Legal Update - 09.07.2014

 Recruiting & HR

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1. Prospectus Breakfast Briefing Flexible working: Heralding a brave new world or a logistical nightmare for employers? Fudia Smartt 2. Introduction  Law changed on 30…
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  • 1. Prospectus Breakfast Briefing Flexible working: Heralding a brave new world or a logistical nightmare for employers? Fudia Smartt
  • 2. Introduction  Law changed on 30 June 2014 – The Flexible Working Regulations (“FWR”) 2014, Part 9 of Children’s and Families Act 2014  ACAS Code of Practice and Guide  Previously request to work flexibly only open to those caring for children or adults  Will this lead to the cultural change envisaged?
  • 3. Legal position since 30 June Eligibility  Only open to employees. Right applies to fixed-term employees and those already working under a flexible working pattern  Requests cannot be made by agency workers, members of the armed forces or employee shareholders  Employee must have 26 weeks’ continuous service by the date on which they make the request (regulation 3)  Only one request can be made under the statutory scheme within any 12 month period
  • 4. Procedure for requests  Meant to be less procedural  A valid application must:  be in writing;  be dated;  specify the change the employee is seeking and when they would like it to take effect;  Explain what effect, in any, the change would have on their employer and how in the employee’s opinion any such effect could be dealt with;  State whether the employee has previously made an application the employer, and if so, when Section 80F (2) ERA 1996 and Regulation 4, FWR
  • 5. How to deal with a request  Deal with request in a “reasonable manner”  Notify employee of decision within the decision period  Trial periods  Refuse on the grounds of a prescribed reason  Dealing with several requests simultaneously  Informal requests for flexible working
  • 6. Dealing with requests in a reasonable manner  No statutory definition  ACAS Code of Practice and ACAS Guide  ACAS Code, para 4 – employers should arrange to talk with employees as soon as possible after receiving request  Good practice to let an employee know if there will be any delay in discussing the request  Employers should make employees fully aware of the impact of the change on their employment e.g. if resulting in reduction in salary, bonus or pension entitlements. Employers to consider if appropriate to advise employee to seek advice from appropriate benefit provider
  • 7. Dealing with requests in a reasonable manner  ACAS Code recommends that employees be entitled to be accompanied by a work colleague  Meetings should take place at a private place where discussions will not be overheard  Employers should consider requests carefully, weighing up the benefits of the requested change and any possible adverse impact
  • 8. Decision Period  Decision period is 3 months or longer if agreed between the parties (section 80G (1B) ERA 1996)  A request is deemed to be received:  on the day of transmission if sent electronically (where employers have agreed to receipt electronically);  the day it would have been delivered if sent in the ordinary course of post; and  If delivered personally, the day it was received  Request to extend the decision period can be made either before the original period ends or with retrospective effect, within the three months beginning with the day after that on which the original decision period came to an end
  • 9. Trial periods  No legal requirement to provide a trial period  ACAS Guide suggests employers may wish to use trial periods instead of rejecting requests if unsure whether the arrangements will work or uncertain about impact on business and other employees’ requests for flexible working  Sensible for employers to extend decision period where taking into account trial period and possibility of appeal it will take longer than 3 months to notify the employee of the final decision  Employees cannot insist upon trial periods although in appropriate cases an employee may be able to argue they should be have been offered this as part of dealing with their request reasonably
  • 10. Reaching agreement  If request agreed the new work pattern will amount to a permanent contractual variation, unless otherwise agreed. Consider trial periods and compromise positions  Employer is obliged to issue a section 4 statement – a written statement of changes to the employee’s terms and conditions that have been provided in accordance with section 1 – s. 4 ERA 1996  In addition to s.4 ERA, it will be good practice for employers to issue new contracts or at least produce a letter setting out the terms and expressly amending the contract with effect as from the stated date
  • 11. Reaching agreement  Also good practice for employers to review new working patterns with employees to ensure that they are working and meeting both parties’ needs  Once a new working pattern has been agreed any change, including to revert to the previous working pattern, will be a contractual variation. Any unilateral change by the employer will therefore amount to a breach of contract. Further, if the employee wishes to change their working pattern they will have to seek their employer’s agreement to this as they will be unable to make a further flexible working request for 12 months from the date of their request
  • 12. Rejecting a request  Ineligibility e.g. lacking requisite service. Advisable to still consider such requests  Technical flaws: Hussain v Consumer Counselling ET/1804305/04  Refusal for a prescribed reason – S. 80G(1)(b), ERA 1996:  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.  Planned structural changes  No reasonableness test – subjective on the part of the employer.  Removal of statutory requirement to include a “sufficient explanation”  ACAS Guide suggests employer’s considerations of requests should be objective  Consider trial periods and any compromise positions
  • 13. Appeals  No right of appeal  The ACAS Code however suggests that employees should be allowed to do so. Consequently, it may come to be seen as an essential part of dealing with flexible working requests in a reasonable manner  No prescribed grounds of appeal  If possible, appeals should be heard by someone: (i) who was not involved in the process; and (ii) is more senior than the original decision-maker  Outcome of appeal should be confirmed in writing, dated and where the appeal is rejected, state the prescribed ground relied upon
  • 14. Withdrawing requests  An employee can withdraw a request at any time. However, they will be prevented from making another request for 12 months from the date of their initial request  An employer can treat a request as withdrawn if:  the employee, without any good reason, fails to attend both the first meeting arranged by the employer to discuss their request and the next meeting arranged for that purpose  the employer has allowed the employee to appeal against the rejection of their request or to make a further appeal and they fail to attend both the first meeting arranged by the employer to discuss their appeal and the next meeting arranged for that purpose S. 80G (1D), ERA 1996
  • 15. Dealing with several requests at the same time ACAS Guide  Employers will need to make value judgments about the most deserving request(s), considering the merits of each request in the context of its business  Requests should be considered in the order they are received. Employers will need to bear in mind, having accepted the first request, the changes this will make to its business when considering subsequent requests  Alternatively, employers might wish to have discussions with employees who have made requests to see if, with some adjustment and compromise, all of the requests can be accommodated  Overriding requirement: employers must be deal with requests in a reasonable manner. Employers should ensure that they adopt a consistent approach in dealing with requests  Employers will also need to take into account any caring obligations or accommodating a disability when considering multiple requests
  • 16. Informal requests  Nothing preventing employees (including those who are not eligible) from making informal requests  Employees who are not eligible to make a formal flexible working request may have other statutory protections which means that there requests should be carefully considered e.g. employees who do not have 26 weeks’ of continuous service who wish to work flexibly due to: (i) their childcare commitments, or (ii) their disability  Employers should adopt a consistent approach in dealing with formal and informal flexible working requests  Flexible working policies
  • 17. Complaints and Remedies  Tribunal cannot questions employers’ business decisions or substitute them with their own decision. Tribunal’s role is essentially restricted to reviewing the procedure, considering if it was dealt with seriously and based on the correct facts. A tribunal will also determine whether the reason for refusal falls within the prescribed reasons. Webster v Princes Soft Drinks ET/1803942/2004 and Commotion Ltd v Rutty UKEAT/0418/05  Time limits – within three months of the relevant date being the first date on which the employee became entitled to bring a claim or such period the tribunal considers to be reasonable where it is satisfied it was not possible to bring a claim within the initial three-month period
  • 18. Complaints and Remedies  Remedies: order for reconsideration of request and/or an award of compensation up a maximum of 8 weeks’ pay. The statutory cap applies (currently £464 per week)  ACAS early conciliation and arbitration schemes. ACAS Code of Practice on Disciplinary and Grievance Procedures  Possible discrimination claims e.g. Disabled employees and duty to make reasonable adjustments  Constructive dismissal  Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
  • 19. Dealing with flexible working requests – practical tips  Importance of having written procedures in place to ensure requests are dealt with appropriately in a reasonable and timely manner  Avoid rejecting applications on technicality points – better to inform the employee of the error and invite them to resubmit their application  Demonstrate that requests have been seriously considered before meetings take place – e.g. Discussions with relevant line managers, and if appropriate, other colleagues
  • 20. Dealing with flexible working requests – practical tips  Consider requests positively – Craddock v Governing Body of Indian Queens CP School & Nursery and anor  Consider alternatives  Provide clear and coherent explanations  Ensure consistent approach  Keep records  Respond to discrimination questions promptly and properly
  • 21. Questions?
  • 22. Contact Details Fudia Smartt Senior Associate 0208 394 6525 Fudia.Smartt@russell-cooke.co.uk
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