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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.

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 enquiries@adams-harrison.co.uk

Menopause Symptoms and Discrimination

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A very interesting case has very recently been dealt with by Employment Tribunal Judge Wade (Lynskey –v- Direct Line Insurance Services Limited) on the 4th August 2023.

The case concerned an employee that was suffering menopause symptoms that were negatively impacting on her work performance. The Employment Tribunal held that the employer had treated this employee unfavourably because of something arising in consequence of her disability of menopause and had failed to make reasonable adjustments. The menopause and symptoms arising from it are not automatically considered to be a “disability” under the Equality Act 2010. A statutory test has to be satisfied in order to demonstrate that someone is suffering with a “disability”.

In this particular case the employer was aware of the employee’s menopause symptoms and the fact that prior to the onset of those symptoms she had four years good performance at work. The employer did in fact make some adjustments and provided additional support and training but the Tribunal considered that it should have done more!

The Tribunal found that performance procedure should have been abandoned, the employees targets lowered and a move to a different role considered. In the case the employer had given the employee an annual performance rating of requiring improvement (which resulted in not receiving a pay rise), a formal written warning and had ceased to pay discretionary sick pay before the employee’s entitlement ended. These were all found to be types of discrimination arising from a disability. The Tribunal Judge stated that a less discriminatory approach could and should have been carried and a referral to occupational health should have been made.

The employee was unsuccessful with a constructive unfair dismissal claim because whilst the Employment Tribunal considered that the employer had acted in serious breach of the Employment Contract when giving the employee the appraisal rating, written warning withdrawing the sick pay, the Tribunal considered that because the employee had remained with the employer for over 8 months before resigning that the employee had affirmed the contract.

The employee received an award of over £64,000.00 for the unlawful discrimination including £23,000.00 for injury to feelings. £2,500.00 was awarded for aggravated damages relating to the employer’s refusal to concede that the employee had a disability.

Our Employment Law Specialist, Jennifer Carpenter Solicitor and Managing Partner can provide advice to employers as to their duties and responsibilities in relation to any type of disability and the Equality Act 2010. Also, advice can be given to employees that consider they may have been treated less favourably as a result of a disability either directly or indirectly. If you think you need help please contact us at enquiries@adams-harrison.co.uk

Employment Tribunal Time Limits Are Strict

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Rarely will an Employment Tribunal permit a claim advanced by a Claimant to proceed if it is out of time. Most, but not all, employment claims have a three month time limit.

A recent case taken to the Employment Appeal Tribunal this month (Bliss Residential Care Ltd v Fellows [2023] EAT 59) the Respondent employer successfully had overturned the Tribunal’s previous decision to allow a claim out of time. The claim had been issued during the start of the Covid-19 pandemic by a newly qualified solicitor. However, it was submitted using the wrong method and then re-submitted but not in time. The Tribunal had sympathy with the solicitor dealing with cases and the problems caused by the pandemic. However, the Employment Appeal Tribunal stated that it should have been right and that the Tribunal should not have allowed the Claimant to proceed out of time.

If you believe you have employment related claims seek our advice promptly so we can ensure that your claim, should you choose to pursue it, is issued correctly and in time to ensure that you can proceed with it.

Women in Law and International Women’s Day

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December 2022 marked 100 years from the time when the first woman was admitted as a solicitor in England and Wales.

The Sex Disqualification (Removal) Act permitted women to be able to work in the Civil Service and the judicial system. Prior, women were not allowed to join the legal profession as they were not recognised as ‘persons’ under the Solicitors Act 1843.

Following on from the Representation of the People Act 1918, which gave some women the right to vote, the Sex Disqualification (Removal) Act 1919 made it easier for women to become lawyers, and in December 1922, Carrie Morrison was the first woman to qualify as a solicitor, with others also being admitted.

Gloria Steinem, world-renowned feminist, journalist and activist once said “The story of women’s struggle for equality belongs to no single feminist nor to any one organisation but to the collective efforts of all who care about human rights.”

For women all over the globe, March 8th is a time to reflect on our past struggles and make stronger our shared voice. This year, the theme for the UN International Women’s Day is ‘DigitALL: Innovation and technology for gender equality.

Plans For Further Protections for Expectant Mothers

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The Protection from Redundancy (Pregnancy and Family Leave) Bill has had its first reading in the House of Lords. There is no detail yet as to when draft regulations will be published to amend the Employment Rights Act 1996. However, should the Bill be enacted it will provide protection against redundancy for pregnant women as well as during or after maternity leave, adoption leave or shared parental leave that is not currently available.

At present there is no reason why a pregnant woman, or someone on maternity leave cannot be made redundant as long as the selection for redundancy is not related to a reason connected to child birth or maternity leave. Women have the protection of the Equality Act 2010 in that regard in that it is unlawful discrimination to cause a woman to suffer unfavourable treatment for a reason connected to pregnancy, child birth or maternity leave. So, watch this space for new laws on their way affording even greater protection.

If you require advice about redundancy or your rights and entitlements during pregnancy and/or maternity leave our employment law specialist, Jennifer Carpenter, solicitor and managing partner has over 20 years experience of advising employees and employers.

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.

National Minimum Wage – Enforcement

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The Government has just announced the new rates of pay for National Minimum Wage (NMW) that will take effect on 1st April 2023. The new rates of pay compared to those currently in place are:-

  • Age 23 or over (NLW rate): £10.42 (up 9.7% from £9.50).
  • Age 21 to 22: £10.18 (up 10.9% from £9.18).
  • Age 18 to 20: £7.49 (up 9.7% from £6.83).
  • Age 16 to 17: £5.28 (up 9.7% from £4.81).
  • Apprentice rate: £5.28 (up 9.7% from £4.81).

What can you do as a worker or employee if you are not paid the correct rate?

Even if you have agreed to accept a reduced rate, lower than National Minimum Wage you still have a claim.

Any agreement by a worker/employee to be paid a lesser rate is void.

A number of claims could be available to you:-

  • Unlawful deduction from wages
  • Breach of contract
  • Unfair dismissal
  • Detriment

Strict time limits apply so seek our advice early.

Unlawful deduction for wages

This is a claim that you have not been paid the correct amount and therefore, the difference in your actual pay and the NMW amounts to an unlawful deduction. Such a claim must be brought within three months of the date you received the pay. However, if the pay you are receiving is lower than NMW on an ongoing basis then you will be able to claim at any time within three months of the last payment. Relatively recent changes to the law though mean you can only claim back for a maximum of two years.

We would assist you in calculating the arrears of pay and the period for which you could claim.

Unfair dismissal and Detriment

If you are dismissed because you have sought to ensure that you received the correct rate, or because your employer has been prosecuted for an offence for failing to pay NMW under The National Minimum Wage Act 1998 then this will be automatically unfair.

This means you do not need a specific length of service to be eligible to bring a claim for unfair dismissal

If you suffer any detriment as a result of:

  • becoming or being eligible for NMW
  • taking action to ensure you receive it;
  • or your employer being prosecuted for an offence relating to NMW

then you can bring a detriment claim for compensation. The Employment Tribunal will award such compensation as it considers just and equitable in the circumstances.

If you are a worker and you are fired because you have asserted your rights regarding NMW then although normally workers cannot claim unfair dismissal (as this is only available for employees) you can advance an unfair dismissal or detriment claim in this situation.

In these cases it will be assumed that the worker qualified for the NMW unless then employer can prove otherwise.

The worker/employee bringing legal action is just one consequence for the employer of failing to adhere to the NMW and the National Minimum Wage Act 1998. There are criminal proceedings, civil enforcement and public naming of organisations.

Contact our employment law specialist, Jennifer Carpenter solicitor and managing partner if you need advice on the National Minimum Wage legislation as a worker, employee or employer.

Long Covid May Amount To A “Disability”

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There are certain conditions that automatically qualify as a disability as set out in the Equality Act 2010.

The Equality and Human Rights Commission has stated that Long Covid should not be a condition that automatically constitutes a disability.

However, if a person’s symptoms have a substantial and long term adverse effect on their ability to carry out normal day to day activities it might amount to a disability. This is the same statutory test for any condition/illness.

It is estimated that 1.8 million people in the UK are experiencing Long Covid symptoms. It is classified as Long Covid if Covid-19 symptoms last for more than four weeks.

If you suffer with a condition that amounts to a “disability” then you are afforded the full protection from disability discrimination.

For advice and representation on your right not be discriminated against in the work place contact Jennifer Carpenter, our specialist employment law solicitor.
enquiries@adams-harrison.co.uk

Huge payment of compensation ordered in case brought against a London bank

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A huge payment of compensation ordered in sex discrimination, equal pay and victimisation case brought by Ms Macken against a London bank, BNP Paribas.

An Employment Tribunal previously concluded that the bank has spitefully and vindictively discriminated against Ms Macken and caused her psychiatric harm. The bank has been ordered to pay £2,081,449.70 in compensation.

The case is interesting because in addition to the compensation figures being high it is believed to be one of the first cases where a Tribunal has ordered an employer to undertake an audit within the provisions of the Equal Pay Audit Regulations 2014. The bank tried to argue that an audit was not necessary but the Tribunal have ordered that it was and must be thorough and completed by June 2022.

For advice as an employee or employer on discrimination claims please contact Jennifer Carpenter, specialist employment law solicitor and partner at Adams Harrison.
enquiries@adams-harrison.co.uk