Right to request flexible working: At a glance

Right to request flexible working: At a glance

From today (30 June 2014) employees have a statutory right to request flexible working if they have worked continually for their employer for 26 weeks. Previously employees were required to meet strict eligibility criteria such as caring responsibilities.

Employees are entitled to make one request per year; however the right to request does not give an employee the right to work flexibly. The employer is under a duty to consider the request, and not to necessarily grant it.

 

As long as an employer acts reasonably and can produce a strong business reason for the rejecting the request, they would be compliant with the new rules. Employees can take a complaint to the employment tribunal but must do so within 3 months.

In terms of the request itself, employees do not have to have caring responsibilities or even a wish to do something constructive such as undertake part time study. A request could legitimately be made for a late start on a Monday, purely because the employee wants a lie in.

 

Businesses are permitted to take account of their operational needs when turning down a request; however some employers have expressed concern over prioritising requests. Should parents always been given first refusal? How do you deal with grievances between employees where one has been granted flexible working and another hasn’t?

The CBI has allegedly reported to have said where there are multiple requests and only one can be accommodated, names should be ‘put in a hat’.

Employers are also concerned about inviting discrimination claims where someone is treated more favourably in terms of a flexible working request, annoying other employees.

The government is pushing family friendly policies and wants to change the modern working culture, their rational being that it will encourage economic growth. Happy workers = productive workers?

Commentators have stated that those who already offer wide ranging flexible working will in reality be unaffected and that the changes in the workforce are unlikely to be dramatic.

Have you had a flexible working request? Not sure what to do? Call our team (01745 343 500) or make an enquiry via our webpage: http://gamlinslaw.co.uk/

Criminal Convictions and Human Rights

Criminal Convictions and Human Rights

The Supreme Court ruled this week on the disclosure of criminal convictions. This has been an interesting case as it deals with those wanting to work with children and vulnerable adults.

 

Generally ‘spent’ criminal convictions do not have to be disclosed and someone with a spent conviction is entitled to state that they have a clean record. The exception to this was when working with certain classes of individuals.

Disclosure of criminal convictions has been a hotly debated topic, with Vicky Pryce (remember she went to prison for perverting the course of justice) declaring support for getting ex-convicts back into work.

Employers are VERY wary of criminal convictions, if a person discloses they have been to prison it raises concerns regarding honesty, respect and even violence. The situation is even more sensitive when it comes to working with vulnerable groups such as children and the elderly.

Employers are free not to employ someone who has an unspent conviction; however they are prevented from using knowledge of a spent conviction to exclude someone from employment.

The exception relating to vulnerable groups, i.e. even if a potential employee had a spent conviction it had to be disclosed for certain classes of work has now been challenged and the Supreme Court has ruled in favour of non-disclosure.

Under the ruling, it is not a necessary and proportionate interference of the Article 8 right to a private life. The case related to two very minor offences, an 11 year old who had been given a warning for stealing 2 bicycles who years later applied to work in a football club. The second individual who stole a set of false nails who 8 years later was unable to get a job as a care worker. Neither individual had any other criminal record.

The Supreme Court stated that this violated their private life and that such interference was not justified and that the criminal records system should be scaled back to ‘common sense levels’.

 

It is a tough one for employers. Employers working with children and other vulnerable groups have been heavily criticised for not checking thoroughly enough when employing individuals where subsequent crimes have been committed. However, is it right that an individual should be judged on an isolated criminal activity committed as a child?

 

We imagine this case will spark debate. Keep an eye out for further blogs on this issue as the discussion develops.

Fee Remission Reality for Claimants

Fee Remission Reality for Claimants

 

The employment press has been awash with statistics and depressing headlines regarding the new fee regime and what it means for the industry. Employers generally love the new fee system, it has vastly reduced the number of claims and HR departments are breathing slightly easier.

 

As someone who acts for both Respondents and Claimants I can see the positive side of having a fee regime and the need to deter spurious and vexatious claims which are damaging and expensive for employers. However, I am unable to take anything positive out of the current regime and the way it is being implemented.

Fees can be in excess of £1,000 for a Claimant. These fees are incurred when a Claimant is arguably at their most financially vulnerable if they have just lost their job. Mortgage payments, feeding their children and paying for electricity clearly take a priority when someone doesn’t know where their next wage is going to come from.

According to the Government, all is not lost; there is of course the fee remission system. Here is where the real problem lies. High fees would not be an issue if the remission system was fair, organised and efficient. If the fee system itself is not preventing access to justice, the remission system certainly is in some cases.

In my experience, having dealt with a number of remission applications it is frustrating, unrealistic and desperately lacking in any insight into the financial viability of the Claimants’ situation. I have had Claimants who are facing eviction, using food banks and do not have enough money to top up their electricity all be rejected for fee remission.

Another case saw a miscommunication between the remission office and the tribunal seeing the case get thrown out for ‘failure to pay the fee’. The case was reinstated; however this was an error which should never have been allowed to happen. Even though the mistake lay within the respective administrative systems, an application had to be made for reinstatement with evidence and reasons.

 

Documentation is key for the remission office. In one case where the Claimant no longer had access to his documents due to relationship breakdown, the remission office refused to use discretion and review a case on its merits, rather than the presence of benefit letters. Even where benefit entries are clear on bank statements, the remission office is resolute on needing the specific documentary evidence.

The fee remission office refuses to acknowledge the difficulties of having documents and letters reproduced by the benefits office or the delays that can be experienced in getting confirmation of entitlement to benefits. When asked what we were expected to do the response was an uncomfortable, ‘we just have to see them’. Often the deadline to produce documents is a mere 5 days, when it can  take weeks for confirmation to come through from the benefits office.

The situation simply cannot carry on. If the fee system is to stay, the remission system needs attention. Claimants who are in genuine financial hardship are not being adequately identified.  If not, we are running the risk of an elitist system where only high earners and those with considerable savings will be able to afford access to justice.

(All views expressed in this article are of the personal views of Elissa Thursfield and are not necessarily shared by Gamlins Law)

Obesity Discrimination: Food for Thought

Obesity Discrimination:  Food for thought?

According to ACAS around a quarter of the adult population in the UK are clinically obese. The NHS believes this figure is set to rise. Obesity is a condition which can be caused by numerous factors, not just food or overeating. It is a debilitating condition which has been heavily stigmatised in the UK and is associated with a host of other diseases.

 

Obesity is not in itself a protected characteristic; however employers need to approach the issue with caution as it is likely that an employee could attempt to make out a case of disability discrimination. If an employee has a physical or mental impairment which has a substantial adverse effect on their ability to carry out normal day to day activities and is likely to last more than 12 months, they may be afforded protection by the act.

The implications for employers are vast, obese employees may have difficulty walking from their car, climbing stairs, bending, lifting and standing for long periods of time. Associated illnesses such as diabetes, back pain, depression and joint difficulties may mean significant reasonable adjustments are required in the work place.

The tribunals have stated that the test for disability is not about how it is caused, but whether there is impairment which is suffered. The Employment Appeal Tribunal refused to go so far as to say that obesity is in itself a disability, but did state that obesity may make it more likely that a person qualifies as ‘disabled’ due to the associated health problems they suffer.

 

So what does this mean? Just because an employee is obese will not give them protection under the Equality Act against discrimination, however, an obese employee who suffers severe back pain due to their obesity may have protection even though their back pain was caused by their obesity.

Clear as mud?

Employers should bear in mind whether an employee genuinely suffers from a physical or mental impairment and refrain from focussing on the cause of the impairment, instead concentrating on its effect.

Consider how long your employee had suffered and whether it is likely to be long term.

If this is the case, be risk averse and consider any reasonable adjustments which can be offered to your employee. Be cautious when taking disciplinary action and ensure all policies and procedures are up to date

Zero Hours Contract Debate

Zero Hours Contracts

The Queen’s speech announced on 4^th June that abuses of Zero Hours contracts are to be cracked down on. Although a sweeping generalisation Zero Hours Contracts (ZHCs) are extremely popular with employers and generally disliked by employees.

Although touted as providing flexibility and freedom for employees, the reality is, unless the employee on a ZHC has an element of financial security the arrangement is worrisome and open to abuse. ZHCs are important for employers, they enable them to meet demand and reduce the workforce during times when trade falls quiet without suffering the expense of employees sitting around doing nothing.

Under a ZHC an employer is not under an obligation to give an employee any hours, the hours supplied might vary from week to week, or even day to day. Abuses include cancelling shifts at the last minute; reducing hours to punish an employee and maintaining an employee can only exclusively work for the ZHC provider and no other employer. This final requirement strips away an right an employee may have to find financial security elsewhere during times when hours are scarce.

Reforms have been suggested by a number of pressure groups over the months, some want a complete ban, others want employees to be given the right to ask for minimum hours (which in itself could be open to abuse by employers limiting their liability and selecting the bare minimum).

 The Head of the CIPD public policy Ben Willmott acknowledged tighter legislation is required and that there is bad practice which needs to be address. He gave short notice cancellations as an example and exclusivity clauses.

In a recovering economy the UK workforce needs to show an element of flexibility and employers have to be able to protect their businesses in order to limit the financial damage that slow months can bring. Banning zero hours contracts could do more harm than good, recruitment would be likely to slow and knee jerk reactions in respect of redundancies may become the response of employers.