breakfast seminar fudia's presentation 09.07.2014
TRANSCRIPT
Prospectus Breakfast Briefing
Flexible working: Heralding a brave new world or a logistical nightmare for
employers?
Fudia Smartt
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?
Legal position since 30 JuneEligibility 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Questions?
