Ben Williams of Goodman Grant Solicitors asks: “Are you dealing with Flexible Working Requests Properly?”
Employers should be aware that they are required to consider a request from an employee for flexible working hours. A request of this nature must be made in writing, setting out details of the request, the date it is made and disclosing the date of any previous request. A request must be dealt with and responded to within three months of the request being made.
What many employers are probably not aware of is what can happen if that request finds its way to the bottom of a pile of everything else a practice owner has to deal with, and the practice owner fails to consider and deal with the request.
Providing an employee has 26 weeks of employment with the employer, the employee has a statutory right to request flexible working hours. If the employer fails to consider the request, it is possible for the employee to bring a claim in the Employment Tribunal and assert this statutory right. The claim that would be brought by the employee is a breach of statutory rights.
If the employment tribunal were to make a judgment in favour of the employee, they could do one of the following:
(a) Make an order that the employer reconsider the request for flexible working; OR
(b) Award compensation for up to a maximum of 8 weeks statutory pay.
The statutory maximum for this type of award is £4,064 from 6 April 2018.
As with all statutory or contractual breaches, discrimination claims could be tagged on to claims such as this which could have grave financial implications, as well as unfavourable publicity exposure for an employer.
Where a request is rejected, a record of this should be kept and reasonable business justification should be set out when confirming the rejection. Where a request is accepted, a variation to the contract of employment should be issued and signed by both parties to note the variation to contracted hours.
It is important to have policies and procedures in place to deal with flexible working requests in a compliant and efficient manner to avoid ending up in the above situation.
It is also worth noting that an employee may only make one request in any 12-month period.
Latest on the Taylor Report – Extension of Employee Rights?
As we have already touched upon, any changes in employment legislation are likely to take longer than usual, whilst the political landscape is dominated by Brexit-related legislation.
However, last month, the government issued its response to the Taylor Report. The points to note in this response are that none of these proposals are guaranteed to happen and will be subject to legislation. Moreover, these proposals will certainly not be implemented before March 2019, save for the issue of payslips.
There is a suggestion that employees could benefit from new “day one” rights that give workers the right to be provided with payslips from the commencement of their employment, which would have to include the number of hours that the employee is being paid for where the employee is not salaried.
What else is being proposed?
• A new tier/definition of worker in the mould of the ‘dependent contractor’ following on from the landmark Uber case;
• A universal right for everyone in the workforce (employees, workers, agency workers, zero-hour contract workers) to ask for a variation to their contract. This would, of course, not go so far as being able to demand a variation and it remains to be seen the nature of variations which would be asked for;
• The right to be provided with a written statement of employment particulars from the first day of employment (at present, this is within two months of employment commencing and only applied to employees).
Whether these proposals are going to make it into law and regulations will depend upon if trade unions have an appetite for these concessions, if they will be rejected in the pursuit of more far-reaching protections and rights for employees, or whether employers and business groups are willing to accept such changes – given some of their considerable practical hurdles and, arguably, increased bureaucracy.
Statutory Sick Pay – the Facts
The issue of when, how much and for how long statutory sick pay (SSP) is payable by the employer is often a point which is misunderstood or simply ignored. This has the potential to be financially detrimental to a business and/or in breach of the law.
Without going into extensive details, here are some of the common misconceptions:
1. Not everybody is entitled to SSP. You must be an employee, have carried out some work for your employer and earn no less than £113 per week (i.e. if your employee works 8 hours per week at £8 per hour, they are not eligible).
2. From the minute they are off work, employees are not entitled to SSP due to illness/sickness absence. The employee must have been ill for at least four days – which includes non-working days – before an employee is eligible.
3. SSP is not payable for an indefinite term. It is only payable for a maximum of 28 weeks;
4. Once this 28-week period comes to an end, the employee is not necessarily left without any money to live on thereafter and may be able to apply to the state for Employment Support Allowance;
5. That isn’t to say you don’t do anything at the end of the 28-week period. If there is a reasonable expectation that the employees’ sickness absence is going to last beyond this period, you should obtain an SSP1 Form (available from www.gov.uk) on the 23rd week of the 28-weeks. This should be completed and given to the employee so that they can access the government funded allowance at the end of their 28-week period of sickness.
The increase in SSP rates which were announced in December are due to come into effect from 6 April 2018 and from which date will be £92.05 per week.
For more information visit www.goodmangrant.co.uk or contact your nearest office:
London: 0203 114 3133
Leeds: 0113 834 3705
Liverpool: 0151 707 0090
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