A review of some interesting developments in employment law
An update on some recent developments
Have your say on the flexible working proposals
The Government launched a consultation on 23 September 2021 regarding proposals to reform the Flexible Working Regulations 2014 to make flexible working the default position.
Currently, an employee has the right to request flexible working arrangements after 26 weeks’ service but the employer can refuse such a request for any of the following reasons:
- extra costs that will damage the business
- the work cannot be reorganised among other staff
- people cannot be recruited to do the work
- flexible working will affect quality and performance
- the business will not be able to meet customer demand
- there is a lack of work to do during the proposed working times
- the business is planning changes to the workforce.
The new proposals are looking to go much further than the current law and make flexible working an entitlement for all employees from day one of employment.
Prior to the Covid pandemic, only 11% of the UK workforce worked from home and it was mainly female employees who sought flexible working arrangements. However, working practices for many changed as a result of the pandemic and the lockdowns and the Government are keen to build on this to ensure that we do not unnecessarily revert back to the 9-5 position if flexible working is a viable option.
The consultation document is an interesting read. As well as setting out the Government’s position and the questions for respondents to answer, it also contains an analysis of the responses received to its consultation in July 2019 regarding improving the information available to job applicants about an employer’s approach to flexibility in the workplace.
It is quite surprising to read that only 8% of the responses to the 2019 consultation came from businesses. The vast majority of responses (86%) were from individuals and were therefore, unsurprisingly, overwhelmingly in favour of promoting flexible working arrangements.
Having said that, according to the consultation, a recent survey by the IOD revealed 74% of company directors planned to increase homeworking in their organisations and 43% intended to increase flexible working with the introduction of flexitime, staggered working hours or compressed hours. So perhaps employers are seeing advantages that flexible working could bring to their business.
The consultation closes on 1st December 2021. While the timescales for reporting back and any legislative changes are not outlined, improving flexible working was one of the Conservative Party’s manifesto commitments so expect to see much more on this in the coming months.
Are your section 1 statements (employment contracts) compliant?
At the start of 2020 we highlighted the changes being introduced to Section 1 Statements (employment contracts), the statement setting out certain terms of employment that all employees (and now workers) must be issued with by law: https://www.bermans.co.uk/get-ready-for-employment-law-changes-coming-in-april-2020/. This applies to all employment contracts issued after the 6th April 2020.
The new requirements focused on improving clarity and sought to have all of the key statements that govern the employment relationship in a single document. However, the requirement on the employer to include more details in the contract regarding working hours, entitlement to paid leave, benefits and training provision could prove impractical for those who employ people on zero hours contracts or for those who have variable working arrangements, different benefit entitlements at different locations of the employer. Ideally in those cases it would be easier to have a standard generic contract and then add a document with any specifics to that employee/worker however due to the need to now have the majority of details in one document this is unlikely to be compliant
The remedies for non-compliance
The risk of getting it wrong is that an employee or worker could bring a claim to the Employment Tribunal alleging that the employment contract was inaccurate or incomplete. The tribunal would then determine what details should have been included.
However, an employee cannot bring a standalone claim for failing to provide an employment contract. This claim still needs to be added to another claim for it to be processed by the Tribunal. If they find there has been a breach then the Tribunal must make a minimum award of two week’s pay and may award up to four weeks’ pay, if it is just and equitable in all the circumstances.
The sums involved are fairly insignificant but the negative publicity from getting such a basic employment process wrong could be costly to a business, especially if there are significant numbers involved. It is therefore worth spending a little time to ensure your Section 1 Statements are compliant.
Mental health in the workplace
Mental health and wellbeing at work has been thrust into the spotlight as a result of the Covid 19 pandemic with many employers trying to figure out what their legal duties are to employees whose mental health has been affected. Can employees be forced back into the workplace if they are anxious and do not want to go? What adjustments must be made for employees who are finding it stressful to be in close proximity to others, do they need to be vaccinated?
With the Health and Safety Executive reporting that 1 in 4 people in the UK will suffer a mental health problem at some point, employers need a robust and effective policy for dealing with mental health issues. Whether work is causing the issue or aggravating it, employers have a responsibility to assist employees to find a solution and in some circumstances, where the issue is deemed a disability, an employer must make reasonable adjustments to accommodate the employee.
Mental health can be a tricky topic. In 2017 the Government commissioned an independent review focusing on ‘how employers can better support the mental health of all people currently in employment including those with mental health problems or poor wellbeing to remain in and thrive through work.’
The review concluded in October 2017 with the report authors, Lord Dennis Stevenson and Paul Farmer, the Chief Executive of mental health charity Mind, publishing an 84 page report which made 40 recommendations that the Government agreed to implement in full.
The most important recommendation in the report is that all employers should adopt six mental health core standards that ‘lay the basic foundations for an approach to workplace mental health’. The standards are:
- Produce, implement and communicate a mental health at work plan;
- Develop mental health awareness among employees;
- Encourage open conversations about mental health and the support available when employees are struggling;
- Provide employees with good working conditions and ensure they have a healthy work life balance and opportunities for development;
- Promote effective people management through line managers and supervisors;
- Routinely monitor employee mental health and wellbeing.
If your business does not have an effective mental health at work plan, now would be a good time to put one in place. We can help you to document your approach and to embed the plan into your organisation and culture.
Redundancy – does failure to allow an appeal make it unfair?
A recent unfair dismissal case that went all the way to the Court of Appeal shows how important it is for employers to follow all of the procedural steps when making employees redundant, even if failure to follow a step does not disadvantage the employee.
In the case of Gwynedd Council v Barratt & Others a secondary school closure was announced and the staff were invited to apply for roles at the new school that was to replace it. The claimants were two teachers whose applications for roles at the new school were unsuccessful. When the school closed they were dismissed for reasons of redundancy but they brought a claim against the local authority for its failure to consult, for not giving them an opportunity to make representations and for not offering them a right to appeal the redundancy decision.
The Chair of Governors of the closing school argued that the claimants were not disadvantaged by not having a right to appeal as their appeal would not have reversed the decision to close the school and it was the act of closing the school that made their positions redundant.
The Employment Tribunal, the Employment Appeal Tribunal and ultimately the Court of Appeal all found in favour of the claimants and ruled they had been unfairly dismissed. They noted that the failure to allow a right of appeal against a decision of redundancy was not in itself grounds for an unfair dismissal finding, but was a contributing factor when determining the overall fairness of the dismissal.
This case highlights that if employers want to avoid any questions over procedural fairness and reduce the risk of unfair dismissal claims, they should ensure that they follow all procedural steps when making staff redundant.
If you are considering a redundancy process and would like further advice to ensure your process is procedurally sound, please get in touch.
Contact Robert Maddocks
t: 0161 827 4617
m: 07585 308630