Changes to the right to request flexible working

On 30 June 2014, the Flexible Working Regulations are amended. This will have a significant impact upon businesses and their employees.

What are the key points at present in relation to flexible working?

• Employees must have 26 weeks continuous employment
• Employers have to by law consider applications
• An employee can appeal against a refusal by an employer
• An agreement can be negotiated
• One application is allowed every 12 months
• Parents with children aged 16 or under (18 if disabled) and certain carers can apply

What are the key changes?

• The request can now be made by an employee with 26 weeks service
• The application need not be linked to children or care requirements
• The employer is not legally obliged to consider the matter but must consider the request in a reasonable manner 
• Employers have more flexibility to refuse requests on business grounds

What should I do as a reasonable employer?

The first thing any employer needs to do is to update their policies in relation to flexible working. This will include ensuring that staff are aware as to how they can make an application, how any when meetings will take place, how and when appeals will be heard and that the employer will fairly consider all requests.

How to handle a request

• Acknowledge the request and send the employee a letter confirming this
• Send the employee a copy of the policy document
• Have a meeting/discussion if the request cannot be agreed upon receipt 
• Allow the employee to be accompanied to any meeting (good practice not a requirement) 

How to decide a request

Consider the affect upon the business and balance these against the benefit to the employee. Consider any cost implications.

On what grounds can an application be refused?

• Additional costs to the business
• Inability to organise other staff
• Impact upon quality
• Impact upon customer demand
• Impact upon performance
• Planned changes to the business

Summary

As with any change to any law, it is unclear whether these changes will have a significant effect upon employers and indeed employee in the workplace. However, it is imperative that employers are aware of these changes and how they should deal with any requests in the future. 

The above comments are not intended to be specific legal advice upon any particular set of facts and should not be relied upon for the same. If in doubt, an employer or an employee should seek legal advice. If you wish to discuss this or any other employment issue further then please contact us on 01582 439795.

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How do we conduct a disciplinary hearing?

From time to time, disciplinary issues arise in any workplace. They need to be dealt with fairly, consistently and promptly. Any Company should, in any event, have disciplinary procedures in place that are up to date with present legislation.

What is the first step to take?
The first step in any process is to identify the issue involved and to investigate. It may be that poor performance, for example, is down to a lack of training or supervision and therefore can easily be resolved by intervention and guidance rather than by disciplinary action. An investigation meeting can be held to establish the facts. Witnesses can be identified and statements can be taken.

If there is a case to answer what do we do next?
The next step is to send the employee what is commonly known as a 'step one' letter. This should set out what the issue involved is and when and where the meeting will take place. Reasonable notice should be given and a copy of the evidence included. the employee must be told that he can be accompanied and that if he persistently fails to attend meetings, the matter may proceed in his absence. The letter should also indicate if dismissal is a possible sanction.

Who should conduct a hearing?
The hearing should be conducted by a senior manager who has authority to make any appropriate decision. It should not be the same person who conducted the investigation.

How should the hearing proceed?
Notes should be taken and agreed if possible. The hearing can even be recorded and a transcript prepared. The employer should present their case and witness statements can be read. Alternatively, witnesses can be called to give evidence. Questions can be asked of witnesses. The employee will then present his or her case and will be given the opportunity of calling witnesses.

When should the decision be made?
In very straightforward cases the decision can be made there and then. The person chairing the meeting can take as long as they require and may wish to consider the matter overnight. Each case will depend upon its facts.

What happens next?
The employee should be notified in writing of any findings made and the decision arrived at. They should also be told of their right to appeal against the decision to a more senior manager.

Summary

• Investigate thoroughly
• Send a 'step one' letter
• Right to be accompanied
• Make notes and agree them
• Come to a decision and justify it in writing
• Remind the employee of their right to appeal

This article gives our thoughts on how a disciplinary process may proceed.It is not meant to be advice on any particular set of facts. If in doubt legal advice should always be sought. We have considerable experience in employment and HR issues and can be contacted on 01582 439795.  

Zero Hours Contracts - What's all the fuss about

What is a zero hours contract
A zero hours contract is where an employee is retained on a contract of employment but is not guaranteed any actual hours of work by his employer. This means that the employer has flexibility in when he calls upon the services of the employee.

What about the employee
The employee may also benefit from such a contract. A student, retired person or housewife may welcome the flexibility of working when and if they choose. However, some zero hours contracts require the employee to be available to work for the employer during certain hours, which is clearly a step too far. This can lead to an employee turning down other work only to sit at home awaiting their employer's call only to receive no such call and therefore no income for that day.

How did such contracts come about
The truth is that this type of contract has been around for many years and has been commonly used in the food business as well as in tourism. A restaurant for example may have a very quiet day and will want to therefore have the flexibility to send staff home or to ask staff not to come in. Similarly, a theme park or tourist attraction will require far more staff when the weather is good and will also want the flexibility to have less staff working if circumstances and the British weather dictates.

What therefore is the issue
The controversy with such contracts is that they have now been adopted as the norm by many national firms and companies on the high street. It is arguable that many of these companies do not need and cannot justify such contracts. However, they merely use them as they provide the absolute minimum in employment rights to staff and you can in essence achieve a workforce of agency staff without the costs involved in recruiting via an agency. 

Should such contracts be outlawed
In our view no. However, they should be used far less than they actually are and an employer should have to justify their use if required to do so.

This blog is designed to share our views on zero hours contracts. It is not intended as legal advice and should not be read as. If you wish to discuss zero hours contracts or indeed any employment law issue then please call us on 01582 439795.

Our website is www.chilternsolicitors.co.uk or follow us on twitter @chilternsols.

 

Can we proceed in absence if an employee does not attend a disciplinary hearing?

An employee may choose not to attend a scheduled disciplinary hearing. This is generally for one of two reasons. The first reason is that the employee does not want to face up to the matter in question. As such, they may simply refuse to attend any meeting or they may go off work and claim that they are sick with stress or something similar. This does not of course mean that every employee who is off work sick with stress is not suffering from the same.

The second reason is because of illness. What happens next will very much depend upon the type of illness and how long the employee is likely to be off work sick.

How do we invite the employee to a meeting?
As with any disciplinary hearing, it is important to write to the employee and advise them of what the issue is that you wish to discuss with them. They should also be advised as to whether the likely sanction will include dismissal.

The first letter should advise the employee that if they fail to attend the disciplinary hearing it will be adjourned on the first occasion. If they fail to attend a second hearing then the matter may proceed in their absence on the evidence available to the employer.

What if the employee fails to attend?
If we assume that the employee does not attend then the employer needs to consider the reason for non-attendance. If the employee is at work and simply will not follow a request to attend a meeting then he or she needs to be reminded that it is a reasonable request and the failure to follow such a request may lead to further disciplinary action being taken.

In the case of a failure to attend because of sickness the employer will need to consider the illness complained of and how this may impact upon the disciplinary process. Key features will include:

• the type of illness and whether this affects the employee's ability to participate in a meeting.
• the likely duration of the illness and the impact upon the business of continued absence.
• whether any reasonable adjustments can be made to the disciplinary process to allow matters to proceed.

Should we obtain medical evidence?

It is always advisable to obtain medical evidence in all but the most obvious of cases. This should include questions such as how long the illness complained of is likely to last, whether the person can attend a meeting and what adjustments can be made to allow a meeting to take place.

It is important to note that an employee does not have to consent to such a report being prepared and they can withhold their consent even after they have seen any report. If this happens then the employee should be reminded that the employer will proceed on the evidence available.

What if the employee fails to attend a second meeting?

If this happens then the employer may choose to proceed on the evidence available at that time. They may wish to allow the employee to make written representations or make other adjustments to the process. Whether or not the employer should proceed in absence will depend upon a number of factors including:

• the employee, their work record, disciplinary record, position and length of service
• the seriousness of the allegation and whether dismissal is an option
• any medical opinion and how long the absence will last for
• how cases such as this have been considered in the past
• what the disciplinary procedures say about proceeding in absence
• whether the employer genuinely believes that the employee is trying to avoid or delay the process    

Matters such as this really rely upon a little common sense. If for example there is a second meeting on the Tuesday and the employee has flu but will be back on the Friday then it makes no sense to proceed in absence. However, if the employee has a broken wrist and fails to attend a number of meetings, the employer may feel that the broken wrist does not impact upon the employee's ability to take part in a meeting and that the matter should proceed.

Summary of key points

• Write and advise of the issue of proceeding in absence
• Always consider obtaining medical evidence
• Consider the matter fairly and ask how an outsider may view the decision to proceed - was it reasonable in the circumstances.

This blog represent our thoughts on disciplinary matters being held in the absence of an employee. It is not meant to be taken as specific legal advice nor should it be applied to any particular set of facts. If in doubt always seek legal advice in such matters.

We have considerable experience in advising employers on disciplinary matters and can be contacted on 01582 439795.

For more information see our website at www.chilternsolicitors.co.uk or follow us on twitter @chilternsols