Employment Briefing - Summer 2014

Published byMartin Stephen

1st July 2014

Welcome to WJM’s Summer Employment Briefing. In Employment Briefing we round-up changes to the law and interesting cases which could have an effect on you or your business.

In this issue, we give an overview of two very significant developments in Employment law and practice - the new flexible working legislation and the Business Secretary’s announcement on zero-hours contracts.  With parts of Scotland breaking out in bunting for the Commonwealth Games, we’ve republished an article from January 2013 on the impact of the Games on employers and how planning ahead helps.

As ever, if you have employment issues over the summer, we’re here to help.

• Flexible Working Changes
• Business Secretary Announces changes to Zero-Hours Contracts
• Fun and Games for Employers?
• Sign up to Employment Briefing

Flexible Working Changes

From 30 June 2014, employees now have the right to request flexible working. This right previously only applied to parents and carers, but has now been extended to all employees who have worked for their employers for a continuous period of 26 weeks. The right does not extend Agency workers.

Procedures are far less prescriptive than that previously in force.

Employers are required to deal with all requests in a reasonable manner and may only refuse the application on one of the eight reasons set out in the legislation.

Employees may complain to the Employment Tribunal if the employer:

• Fails to deal with the application in a reasonable way;
• Fails to notify them of the decision within 3 months;
• Fails to rely on one of the statutory grounds for refusing the application;
• Bases its decision on incorrect facts; or
• Treats the application as withdrawn when the grounds for doing so do not apply.

Employees may only make one request in any 12 month period. The request for change must relate to:

• A change in hours;
• A change in time of work;
• A change in the place of work (as between home and any of the employer’s workplaces).

Under these 3 apparently simple headings there are a wide range of options including part-time working, full-time working (if currently part-time), annualised hours, compressed hours, flexi-time, homeworking, job sharing, self-rostering, shift-working, staggered hours and term-time working, among others.

Employers must act reasonably and may only refuse a request on one or more of the following grounds:

• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to re-organise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Planned structural changes.

There is no definition of dealing with the request in a reasonable manner. It is suggested that a discussion should take place as soon as possible after receipt of the written request, unless the employer intends to agree to the request, in which case a meeting is not required. Employers should try to deal with requests as quickly as possible but if there is to be a delay before the meeting takes place the employee should be told. When discussing the request, employers should ensure that the employee is fully aware of the impact on their contract of employment, in particular if the change will result in a reduction in salary, bonus or pension entitlement. In the latter case it is suggested that the employee is encouraged to take professional advice.

Employers should take account of operational day to day issues. For example, attending meeting while working from home. A trial period may be appropriate.

Employees do not have the right to be accompanied at the initial meeting or appeal, but the ACAS Guide suggests employers should allow this.

Employers have 3 months from the date of the request to make a decision, although this can be extended by agreement.

Any changes agreed by the employer constitute a variation of the contract of employment and, unless agreed otherwise, are permanent. A written statement of changes to the contract of employment should be issued within 1 month.

The legislation does not make express provision for appeal, but the ACAS Code suggests this should be allowed. Employers may receive requests for flexible working from more than one employee at the same time. The ACAS Guide suggests that employers do not have to make a value judgment about the most deserving request. It requires the employer to look at each request on the merits in the context of the business. Request should be dealt with in the order that they are received. Alternatively an employer can have a discussion with all of the employees who have made requests to try to broker an acceptable arrangement for all.

We in the Employment team would be happy to guide you through the new arrangements and our HR Assist Service can help you with the practicalities of putting any new arrangements in place.

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Business Secretary Announces changes to Zero-Hours Contracts

A consultation on the issue of zero-hours contracts started in December 2013 and closed in March 2014. The consultation was sparked because of concerns that the flexibility of zero-hours contracts was being exploited by employers. The consultation received over 36,000 responses from individuals and groups concerned that zero-hours contracts do not adequately protect employees, as they have no right to fixed hours and no right to holiday or sick pay. Whilst the Government is not proposing to outlaw zero-hours contracts, the Business Secretary’s announcement reflects the Government’s commitment to ensuring that their use is fair. The Business Secretary announced that exclusivity clauses in zero-hours contracts (which prevent employees from working for more than one employer) will be banned as their use limits the choice and flexibility of the individuals concerned. He also stated that the Government would work with unions and business to develop a best practice code of conduct aimed at employers who wish to use zero- hours contracts as part of their workforce. Further protections for zero-hours contract workers were also announced, which included:

• Consultation on how the Government will safeguard against rogue traders evading the exclusivity ban; and
• Reviewing existing guidance to provide employers and employees with more information on using these contracts.

If your business is considering using zero-hours contracts, or if you have them in place and wish to discuss changing these arrangements our Employment Team can help.

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Fun and Games for Employers?

Glasgow is in the last stages of putting on its best face for the Commonwealth Games. Banners and bunting decorate lamp posts and people are embracing the spirit of the Games. For employers, the Games can present a challenge – back in the cold gloom of January 2013, we examined lessons to be learnt from the London Olympics. We’ve re-issued the article below as a timely reminder. If you have any employment issues during the Games, we’re here to help.

The Employment Games
Before the Olympic Games various predictions of doom and gloom were heard from employers. Staff wouldn’t be able to get to work because of the congestion, they’d be bunking off work to watch key events on television, productivity would be down because staff would be distracted through surfing the internet to catch up with the latest news from London.

As the Games unfolded employers began to relax somewhat. Yes, productivity was affected but somehow it didn’t seem to matter in the overall feel-good atmosphere surrounding the Games. Many employers allowed employees to work from home and others capitulated with TVs on their premises. People acted more sensibly than many employers expected and the predicted congestion simply didn’t materialise. By the time the Paralympic Games came round, people wondered what all the fuss had been about.

With the Commonwealth Games coming to Glasgow in 2014 what should employers be doing?

“Our key piece of advice would be to learn from London and plan ahead,” said Martin Stephen, WJM’s Head of Employment. “Prudent employers consulted with their staff well before the Jubilee holidays and the Games and put temporary policies in place covering working from home, time off and access to news. They recognised that all three events were ‘once in a lifetime’ events and that many people wanted to volunteer, participate or spectate, so special dispensations or amendments to working conditions were made.”
It is unlikely that employers would need to change contracts of employment but having a clear, well publicised policy will help employers manage staffing issues. “The Commonwealth Games fall right in the middle of the school holiday period so on top of the usual challenges, employers will see increased demand from those wanting to be part of the spectacle whether through volunteering or simply attending events,” said Martin.

Through their policy, employers will be able to set out the minimum staffing levels they want to maintain during the Games, state whether unpaid leave can be taken in addition to holidays and devise mechanisms to arbitrate in the inevitable disputes which will arise when several people want the same days off.

“Most aspects are, or should be, covered in your existing contracts of employment”, Martin continued. “By drawing up a special policy for the Games period, you are simply making your staff more aware of these aspects.”

The WJM Employment team can help you draw up a policy to cover staffing challenges during the Commonwealth Games period and our HR Assist service can help with the implementation and management of the policy. More information from Martin Stephen: mss@wjm.co.uk 

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Sign up to Employment Briefing

If you have colleagues who would like regular updates on employment news and views through Employment Briefing, please let us know and we’ll send a copy to them - direct to their Inbox. Colleagues are welcome to email employment@wjm.co.uk with the title “Employment Briefing” in the subject line and receive a copy sent to them personally. WJM - updating your regularly with all the information you need - straight to your screen. For further information on these or any other employment issues, please contact:

• Martin Stephen     mss@wjm.co.uk
• Andrew Wilson   ajpw@wjm.co.uk
• Liam Entwistle     lae@wjm.co.uk

Read more about our Employment Services. For information on our HR Assist Service please contact:

• Julia MacDonald   jmc@wjm.co.uk

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