The Health and Safety Executive (HSE) has recently published a 10-year strategic plan “Protecting People and Places” to build on the U.K.’s excellent safety record, and to expand its responsibilities.

After being heavily criticised for its faltering response during the first year of the pandemic, the HSE wants to ensure that its future focus is better targeted and more wide-ranging. A tough balancing act.

It’s five key objectives are listed as:

  1. Reducing work-related ill-health, especially mental health and stress.
  2. Making sure that the public feels “safe where they live, where they work, and in their environment”.
  3. Ensuring that health and safety legislation does not prevent innovation and progress.
  4. Maintaining the UK’s exceptional safety record by “learning from evidence and past events to protect people”.
  5. Ensuring that the HSE attracts and retains a highly skilled and capable workforce.

These are very grand aims. And, according to the HSE, they reflect the changing world of work and legislation. Among other things, they will be establishing a Building Safety Regulator, and take on more responsibilities for chemical regulation.

Mental Health

As part of their first objective, they have said they will treat mental health as seriously as physical health, and will be looking at the actions of employers in this regard. They see this as especially important when there is so much coverage in the media regarding mental health, stress and depression, particularly following the pandemic.

This work has already begun – Sarah Newton, Chair of the HSE Board, said ‘We worked with and listened to experts from MIND, ACAS and the Federation of Small Businesses, and last month achieved the milestone of 500 champions for our campaign to increase awareness of the risks of work-related stress and encourage businesses to take action.’

500 champions are all well and good, but many of these are fundamental problems, going to the heart of organisations. The danger is that people will just train and appoint Mental First Aiders thinking this is sufficient, when it is invariably just a sticking plaster on a festering wound.

Change of Direction

It is also worth pointing out that this is a significant change of direction for the Executive, as previously Inspectors appeared to rather shun the notion of Mental Health falling within their domain. And their second aim, concentrating on the home and the environment, as well as the workplace, is a considerable widening of their focus.

Commentators have pointed out that this has been brought about, in part, by the Grenfell enquiry, and it is worth remembering that it was 5 years ago this month that this terrible tragedy occurred. For the Grenfell survivors and relatives, they feel that they are still a long way away from achieving justice for loved ones lost.

But, the pandemic has also changed how individuals feel about their safety and their attitude towards risk, both at home and in work. And hybrid working means that the lines between home and the workplace are increasingly blurred.

People tend to feel safer working in their own homes, but familiarity can breed contempt. As an example, the HSE has reported a significant rise in musculoskeletal disorders (MSDs) in the last year alone, arising mainly from poor ergonomic home workstations.

The passing of the Building Safety Act 2022 very recently means that they can now establish a regulator to concentrate exclusively on the building industry. They claim this is the sector with the biggest issues and the highest number of fatalities, outside of road traffic accidents. So, it needs its own regulator that understands the issues.

Its last aim, to recruit a high-class workforce will very much be determined by the market. Every employer knows how difficult it is to recruit at present, will the HSE be able to attract and retain the necessary experts?

Laudable Goals

Alongside its stated objectives are 6 goals that they say will drive their strategy up to 2032. Their goals for the HSE are:

  • It remains relevant by keeping its regulatory framework under continual review.
  • As a fair and just regulator, it will target higher-risk activities and poorer performing employers.
  • It will be people-focused.
  • It will take a collaborative approach.
  • To remain financially viable, it will combine cost recovery and Government funding to guarantee the right level of investment.
  • It will be accessible, developing its digital capability and employing new technologies at its disposal.

These are laudable and worthy aims and make perfect sense. But the proof of the pudding is in the eating, or in the HSE’s case, in the implementation.

And, for an organisation that had never been needed more than in the pandemic, its response was disappointing. And many, including us, accused them of “going missing in action”, seemingly judging the work environment too dangerous to risk their own inspectors in the field. And, only producing relevant documentation for employers to use months after industry bodies, like IOSH, had already produced their own, that were of far better quality and practical to use than the HSE guidance.

As the saying goes, actions speak louder than words, and the HSE has had a lot of missed opportunities over the last few years. They now need to catch up if they want to still remain a credible institution, as well as being a regulatory enforcer.

 

Our consultants would be pleased to advise you on any element of the issues arising from this newsletter.

The Government has announced plans recently to pass legislation changing the way exclusivity clauses in contracts work for some of the lowest paid workers.

What does this mean in practice? That for workers in these groups, employers can no longer insist that they work exclusively for them.

This legislation will be targeted particularly at those on what is popularly known as “zero hours contracts”, the correct legal term is casual terms of engagement, and those earning less than £123 per week.

In other words, if the employer can only offer very little work, or reserves the right to offer no work at all, then they cannot insist that the worker does not look elsewhere for work to supplement their earnings.

For most employers this will have little or no effect. But there will be some who have traditionally used zero hours contracts for key groups of their workforce to cope with operational peaks and troughs.

If this legislation goes through, employers may want to stop these types of workers from working at the same time for competitors. They may be forced to protect themselves by either offering better contracts, or more hours, taking them over the £123 per week.

It will be a little time before such legislation is passed, but those who rely on these types of labour had better start planning now, if they feel it will have a detrimental effect on their operations.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Week commencing 9th May was Mental Health Awareness Week, and the theme for this year was loneliness.

Mental health has become increasingly important as the world faces its most stressful time for many decades. A global pandemic, a major war on the borders of Europe and predictions of a global recession constantly blasted over all forms of news are certainly not helping any of us to feel better.

Most of our clients fall into one of two categories. They are either in an industry that is much in demand, but faced by a talent shortage so everyone is working at the limit, or they have been badly affected by the current economy, supply chain difficulties, extra employer costs and are facing economic uncertainty.

But while many can understand those types of stress, the problem of loneliness, especially for those at work, creeps up insidiously.  By very definition, those who are lonely do not speak to many people, certainly do not communicate effectively with them. So as an employer you may well be unaware of the feelings of these workers.

And while it is fairly obvious that working from home can create loneliness, it is often more difficult to spot those at the workplace who feel the same way.

The NHS has a very good section on mental health – Every Mind Matters – NHS

And an interesting article and quiz on loneliness which might also be useful – Loneliness – Every Mind Matters – NHS

What steps can employers take to help and support employees who feel lonely?

First of all, take the opportunity of Mental Health Awareness Week and raise the profile of the problem within your workforce. Open up clear dialogue between yourselves, your Line Managers and your staff to make sure the question gets asked of everybody – “Are you feeling lonely? Is there anything we can do to help?” Talking is always a good starting point.

By raising the issue with your Managers, they might also start to actively think about those employees who are showing signs of loneliness, and do something about it. This should not be a tick box exercise, but something they learn, and can be trained to look out for on a permanent basis.

Improve your communications with your workforce generally. Depending on the size of your organisation, a round robin email, or a more formal newsletter, can help everyone stay informed, be recognised and be included. Giving people something to talk about encourages them to talk.

Recognise who is most likely to be lonely. New starters, especially if they come from different backgrounds or different generations from others, can find it very lonely in the early days. Making sure they have a mentor who looks after them and helps assimilate them into the organisation, really helps.

As more and more return to the workplace, including them in social events or more formal meetings will also allow them to meet more people, make more connections.

Home workers clearly can go days or even weeks without any meaningful conversation with the rest of the organisation. This should not happen, and Management should recognise the importance of regular communications, and events with such individuals. Creating special projects on which a number of your home workers can collaborate can also be a way forward, encouraging them to communicate regularly and work together.

Finally, look to use outside resources as well. There are some fantastic online resources that can cost effectively take individuals through a programme, or you can use a more traditional organisation or professional to help monitor your employees.

The last couple of years have been a stressful time. And many will keep their concerns and their thoughts to themselves. Those with less confidence may be worried to share, thinking, probably wrongly, that it might jeopardise their future.

Having a healthy, involved and engaged workforce will be far more productive than having one that feels isolated, under stress and undervalued.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

A couple of high-profile, corporate cases recently have highlighted what happens when organisations panic. When they try to fix one problem, but unwittingly create another elsewhere.

And, in case anyone was wondering whether it was all worth it, it also underlines the importance of having robust legislation to ensure that organisations do the right thing, not just try to fix today’s problems.

Sainsbury’s fined £1 million

This was a health and safety case which happened during Covid, which resulted in not only Sainsbury being fined £1 million, but also resulted in very serious injuries to a lady on a mobility scooter.

As the pandemic began to hit, Sainsbury’s in Newbury were keen to get their health and safety correct to protect both customers and staff. So, they put together a queueing system outside the store, the likes of which many of us became familiar with during 2020.

The problem was that the tape they used to divide the lanes was so weak that customers either broke it deliberately, or the plastic barriers below it blew over in the wind. So, they decided to use something altogether more robust, and pretty well unbreakable. The problem was that the parcel strapping was black, not easily seen and at head height for anyone on a mobility scooter.

The lady involved endured life changing injuries when she failed to spot the tape fixed between two car park pillars.

Sainsbury’s were investigated and prosecuted by the local Health and Safety Executive. The judge recognised that they were trying to do their best in difficult circumstances. However, no health and safety risk assessment had been carried out. If they had, they would hopefully have spotted the danger immediately.

As no risk assessment was carried out, and the result of the serious accident that occurred was found to be the fault of the organisation, Sainsbury’s were duly fined £1 million. Something that will have a big impact on the store and organisation’s reputation and profitability. Let us not forget that all of the supermarkets continued to have a pretty profitable time during the pandemic which could explain the size of the fine.

The investigating officer stated “I think the message to take from this is to not to take your eye off the ball. Consider all areas of potential hazards and risk assess.”

“If Sainsbury’s had carried out an adequate risk assessment, I am sure staff would have considered the potential outcomes. Of course, the circumstances of the pandemic played a role in this, but I think the lesson to take is that it is easy to be distracted, and think you’re doing the right thing in one area, but actually find yourself creating another issue somewhere else.”

The victim is likely to also have a very strong and expensive personal injury claim.

The P&O situation

We have not really had to comment too much on P&O’s current, lamentable situation. There has been enough coverage about it in the press.

But it, like the Sainsbury’s case, shows exactly what happens when the organisation takes a short-term view and either ignores the consequences, or thinks it can get away with it.

By the admission of their Managing Director, P&O Ferries (not P&O cruises, who are a completely separate company and entirely innocent, but whose reputation has also been badly affected), the organisation knew they were breaking the law. Nevertheless, they decided that the cost of doing so and any subsequent fallout was preferable than continuing to pay the lawful UK national minimum wage or above to their workers.

Not only were they relying on a slightly perverse provision in the law that said ships registered overseas were not subject to UK employment law, even on UK routes, but they had also cynically re-registered a number of their ferries a few years ago to take advantage of this loophole.

The subsequent fallout has surely cost them far more than the savings that they make on the hourly rate for their crew. Their failure to even carry out the minimum of consultation, let alone the statutory 45 days, shows why we have such laws.

Their fairly weak argument that they had lost £100 million the year before during the pandemic so that they could not afford to continue, scarcely holds water. Especially when their parent company had just spent £250 million on sponsoring the European golf tour.

The immediate outcome has been that the Government has rushed through a change in the law to ensure that any new crew have to be paid the national minimum wage. We suspect that the fallout for P&O will continue for many years, and we wonder whether they will have a viable future in the UK. If they are relying on insurance cover to cover the costs of the losses from their actions, that may not happen given the fact that they made a conscious decision to break the law on collective redundancy consultation.

If they had operated in exactly the opposite way, done proper group redundancy consultation and supported their workers throughout all of this, the public probably would have come flocking back. How their rivals must be rubbing their hands with glee.

In a tight labour market, they are unlikely to be an attractive employer to anyone other than a seafarer from abroad, who regards c. £5 per hour as a good deal.

So, what is the learning from these two cases?

Large employers are no more immune from getting matters wrong than SMEs if they fail to follow good professional advice. Always take a holistic view when making business decisions, be it traffic flow as part of a car park risk assessment through to making large scale redundancies.

Follow the basic legal requirements, take a reasonable and considered approach as opposed to a knee jerk one.  Always consider the reputational as well as safety risks arising from rushed decisions, or calculated ones designed to get around the law.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Having been extended on a number of occasions, the Covid adjusted Remote Right to Work Check will officially come to end on 5th April to be replaced by a mixture of in-person manual checks and a number of online checks.

These are significant changes to the previous procedures and they need to be carefully studied. Full details, and they are very long and involved, can be found here.

Legitimate Checks do not need to re-done

Originally, the Government had stated that once the temporary Remote Checks period had come to an end, all checks would have to either be verified or be repeated in person. But now that is no longer necessary.

So, the good news is that any legitimate check carried out before 5th April will not have to be re-done, even if carried out remotely.

Of course, if such checks reveal the Right to Work is a time limited one, they will still need following up at the appropriate time.

Online Checks

Many employers are already familiar with the online check for EU and EEA nationals who qualify for settled and pre-settled status.

But until now employers have also been able to take copies of their Biometric Residence Cards and Permits. From 6 April this will no longer be possible and the free online checking service will be the only way to check this and show a “Statutory Excuse”.

The UK Visa and Immigration Service (UKVI) has suggested they will also be introducing a paid for online check for British and Irish Passport holders and those with Indefinite Leave to Remain.

A manual check will always still be permitted for the time being, which will cost nothing.

Permanent or Temporary?

Carrying out Right to Work checks is something that all employers should know about. It is mandatory to carry these out for all new employees.

There are two lists of documents, List A and List B.

List A refers to those who have a permanent right to remain and work in the UK. You do this check once, and if you establish the worker has a permanent or continuous Right to Work, you are done forever. It does not have to be checked again while they continue to work for you.

List B on the other hand, relates to those who have a temporary or time-limited permission to remain or work in the UK. Depending on how temporary or time-limited that permission is, employers have to recheck the permission periodically, and certainly shortly before it expires. This is also the case for the online check. Check the guidance for more detail on this.

These Lists A and B are slightly different to what they were so do not rely on old lists!

It is the re-checking process we suspect which is where most employers will fall down. Many are quite assiduous at checking people’s Right to Work when they first joined the organisation, but singularly fail to follow up and recheck their permission as prescribed by the law.

Any audit of your workers could lead to embarrassing situations, and indeed, we have dealt with employers who have found themselves in this situation. In almost all cases, it has not meant that individuals are not allowed to work in the UK, simply that their paperwork is not up-to-date, and in some cases the individual themselves has not renewed it.

The risk to the employer, however, is an expensive fine, so make sure you have a robust system in place, especially if you employ a lot of existing non-UK nationals. If you do not employ many/any non-UK nationals do not think it is unimportant. Just checking people who look/sound different is a good way to generate a race discrimination claim.

The UKVI has stated its intention to put all checks online by 2024.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Despite the rise in the number of requests for flexible working recently, there have been relatively few cases on the subject since the start of the pandemic.

Earlier in the year, we had a decision regarding the turning down of flexible working requests without proper consultation in Hodgson v MDA Ltd.  We reported on that here, and the employer’s stance was held to be unlawful and it cost them £60,000. Proper, meaningful consultation had not been carried out.

We had another case, Dobson v North Cumbria Integrated Care NHS Foundation Trust.  Here, it was ruled that unfairly applying criteria to flexible working requests that discriminated, in this instance particularly against working mothers, was unlawful. You can read about our thoughts here.

But so far, we have not had anything that has talked about the length of time it takes to make a decision.

This was set a few years ago by the ERA (Employment Rights Act 1996, as amended) at three months. Once a flexible working request is properly submitted by the employee in writing (this includes email), the employer must have come to a decision, including allowing for any appeal, within three months. The only exception to this is where both parties mutually agree to an extension of the time between them.

Way before the pandemic, in early 2019, in Walsh v Network Rail Infrastructure Limited, the Claimant had submitted a proper flexible working request. This had been turned down by the organisation and that decision was appealed.

Unfortunately, and this was not disputed, through no fault of either party, that appeal could not be heard until after the three months was up. The Claimant then submitted an ET1 (an Employment Tribunal claim) that the organisation had not treated his request properly, and that the process had not been completed within the decision period.

The Employment Tribunal rejected the claim, saying they were not able to hear it until the appeal process had been completed. And, as they had both agreed to it taking place after the deadline, they had both implicitly agreed to extend the decision period, something that the law allows them to do by mutual consent.

This decision was overturned by the EAT (Employment Appeal Tribunal), so the Employment Tribunal was told to hear the case. The facts of the case are not particularly relevant, but some of the Judge’s comments are. In particular, it is beholden upon employers to complete these requests within three months, as very often employees are in situations where they need a quick decision.

“Part of the statutory purpose of these provisions is to ensure that decisions are made with reasonable dispatch. That is for obvious reasons. Employees often seek flexible working because of urgent personal circumstances.”

It is simply not good enough to delay, even if the reason for that delay is beyond both parties control. In reality, with hindsight, it is possible that the employer could have acted upon the initial request earlier, and not relied so much upon ACAS, who were the ones who were responsible for the hold-up.

Flexible working requests are becoming more and more frequent, as the pandemic has caused many to re-evaluate their working lives and patterns. We just need to remind employers that these need to be treated properly, with a proper process and a right of appeal, and that everything should be completed within three months.

That is unless both parties agree explicitly to extend the period. Silence or lack of complaint, cannot be held to signify that the employee has actually agreed to delay beyond the three-month timeframe.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

You may recall that over the past year we have referred to Fire and Rehire strategies on a number of occasions.

These have been used by some organisations during lockdown to help organisations ‘renegotiate’ their employment contracts, supposedly to help them survive. They have been called into question by unions, politicians and members of the HR community.

ACAS wrote a very critical report on the subject during the summer. And they promised to the Government that they would produce guidance to employers, laying out the best way to negotiate changing contracts.

It has been something that we have never advocated either. Essentially, it is a unilateral breaking of the original employment contract, softened by the promise of new employment, albeit generally on less favourable terms.

Not only does it seem to us to be unfair to the employees and damages working relations, it also potentially lays the organisation open to legal challenge and bad publicity.

We recognise that there are times when contracts do need to be renegotiated or altered. The pandemic and the furlough scheme meant that many employers had to quickly sort out a plan to allow short time working and layoff to be incorporated into employees’ contracts.  We are pleased to comment that nearly all of our clients did not have that hassle, as the appropriate lay off the short time working policies were already in place.

But the blunderbuss approach of firing everyone and then re-engaging is a sledgehammer to crack what is very often a much smaller problem. And many who have approached their staff problems in this way are finding it difficult to win back the trust of employees now there is a genuine labour shortage. Long term the approach may very well prove to be more expensive than the savings.

ACAS certainly seems to think so, and last week followed up their report by publishing new advice. This is aimed at helping employers maintain good employment relations and reach agreement with staff if they are thinking about making changes to their contracts.

In particular, the guidance covers

  • When to considering employment contract changes
  • How to propose them
  • Consulting about the changes
  • Handling requests for changes to an employment contract
  • How to proceed if employment contract changes are agreed
  • What to do if they cannot be agreed

ACAS Chief Executive, Susan Clews, said:

“Our new advice is clear that fire and rehire is an extreme step that can seriously damage working relations and has significant legal risks for organisations.

Employers should thoroughly explore all other options first and make every effort to reach agreement with staff on any contract changes.

Organisations that consult with their workforce in a genuine and meaningful way about proposed changes can help prevent conflict at work and stay within the law.”

ACAS’ full advice is available here.

We would see fire and rehire as the nuclear option, only to be considered when extensive negotiation has failed and/or when impending insolvency/liquidation means that there is genuinely no alternative, other than to cease to exist after energetic attempts have been made to make ‘life-saving’ changes by agreement.

It must also be re-iterated that doing so is likely to mean that key staff will leave, recruiting suitable replacements may be very difficult, and morale will for a time be low.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.

Good employers treat their employees well and fairly. We all know that.

And, to protect themselves, good employers also make sure they follow the right processes and procedures when having to manage attendance or performance, or to discipline or dismiss members of their workforce.

But good employers can also fall foul of an increasing trend we are seeing, especially when employees think that they might take their employer to tribunal. The dreaded subject access request (SAR) under the Data Protection Act.

For those who have followed the correct procedures, this should never present a problem. However, careless use of email communications, because the writer thinks that they are private, can come back to haunt the employer in some circumstances.

Over the years, we have received email communication from a number of clients proposing a course of action or outcome with named employees. These were not prompted by us, but should they appear in court documents, they could be very damning. You might think it, but avoid the temptation to put your personal thoughts about people or what you want to happen to them in writing, especially when an individual is named.

Common emails that make us wince when we receive them are often along these lines: “I want to make Joe Bloggs redundant, how do I go about it?” or “Joe Bloggs is useless, how do we get rid?”

A subsequent redundancy process might then go ahead, you do it correctly and include others in the pool, and this individual is then made redundant. The employee then claims it is unfair, puts in a tribunal claim and also makes a subject access request. For a few years, a SAR was normally a precursor to a claim, as the employee (or their solicitor) embarked on a fishing expedition to look for something bad to confirm their suspicions. This has now evolved to other claimants who make their claim and then put their ‘request’ in to get some evidence, when they have very little and/or to put pressure on the employer to settle.

Depending on how that request is made, the original incriminatory email could be part of the disclosure that you are bound by law to reveal. It would then be very difficult, if not impossible, to argue that the redundancy selection process was a fair one.

So, the lesson is that, when dealing with employee issues, anything that could be seen as prejudicial, even if that is not really what you were actually intending, should not be committed to writing. And indeed, if you are thinking of making redundancies, the people chosen should never be a foregone conclusion, they must always be subject to a fair, equitable process, where the most suitable candidate or candidates are chosen for redundancy, not just the outcome you are looking for.

In circumstances where you have decided that a particular individual has come to the end of the road, redundancy is rarely the right solution. Settlement agreements, where issues can be openly discussed and dealt with, are much more effective and secure. And, a properly worded settlement can get around a subject access request “fishing trip” by specifically excluding it from any action that the employee can subsequently take.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Many companies are continuing to debate hybrid working, and whether it should be introduced permanently as part of a normal way of working. Others have enthusiastically adopted it for some time.

Recent surveys by the CIPD and the IOD seem to indicate that employers are increasingly accepting that it can be a more efficient way of working and improve performance. In fact, according to the CIPD, 41% of employers in November thought this way, up from 33% a year ago. And conversely, only 18% now think it is detrimental to performance compared to 23% in 2020.

The benefits to a properly equipped, well set up, hybrid workforce is fairly self-evident. By allowing workers to split their time between the office and home, employers can not only increase efficiency, but give the individual greater flexibility, improve their work/life balance, and get away from the daily commute. So not only will this save them time and stress, but also money.

So, what is there not to like?

From a health and safety point of view, it is more complicated. For a start, the employer does not have complete control over their employee’s workplace for the whole week.

Since the start of the pandemic, with more workers working from home, there has been a significant rise in musculoskeletal disorders (MSD). Nearly all of these injuries are preventable, especially if they are associated with sitting at an inappropriately equipped and ergonomically unsound workstation for long periods of time.

In addition, if the workspace at home is not sufficiently separate and isolated from the rest of the house, then other problems can occur. The stress of working in a noisy environment, possibly with children running around, and the potential to trip over wires in a busy, crowded workspace is real.

Home working risk assessments

This should not be anything new to our regular readers. Every workspace at home should be self-risk assessed, because normally this is not possible by anyone other than the employee themselves.

However, IOSH, the professional body for Health and Safety consultants, recommends that alongside a proper risk assessment, photos and videos can be requested of the working environment to make sure it is properly set up.

We have discussed before what equipment the employer should provide, including an appropriate chair, IT equipment, phone line, broadband and the right resources, such as subscriptions and licenses, where necessary.

In addition, their Manager, or nominated health and safety competent person, should also be offering advice on how to reduce risks in the home. They should cover lighting, wiring, storage, fire, ergonomics and using a suitable workspace.

Workers should also be encouraged to look after themselves. Moving around regularly, and looking after themselves physically are essential. So, taking regular breaks looking away from the screen and being sensible about how much daily screen time they have really helps.

Post-pandemic, many employers are being faced with problems they have not really had to address up to now. Homeworking is one of them, and while many arrangements were organised in haste during the pandemic, there should now be plenty of time to review and act to make sure that everybody is working safely from home.

If not, there will be a rise in the number of claims for injuries at work and the resultant damage it has caused.

 

Our Consultants would  be pleased to advise you on any element of the issues arising from this newsletter.

The right to request flexible working was first introduced under the Employment Act 2002. In 2007, this was expanded to include caring for adult relatives. Under the Flexible Working Regulations 2014, it stopped being necessary to be a carer in order to be eligible.

In 2020, at the start of the Covid-19 pandemic, we were told to work from home wherever possible, and lo and behold millions of people found that they could do so, reasonably effectively and safely. As returning back to offices became possible once more, 2021 saw a further increase in requests, particularly people asking to work at home some or all of the time.

In theory, the penalty for employers getting it wrong is not big, i.e. up to 8 weeks’ pay at up to £571 per week, but there are other risks:

  • Raising a grievance
  • Leaving for a ‘better employer’
  • Claiming constructive unfair dismissal
  • Making a discrimination claim

The biggest risk is a discrimination claim with the scope for unlimited compensation.

There are positives to flexible working requests. The CIPD believe that flexible working has clear business benefits for organisations and individuals. Quality flexible working can help attract talent, improve employee job satisfaction and loyalty, reduce absenteeism, enhance wellbeing, and make businesses more responsive to change. There are many flexible working options for employees to choose from. Options are not limited to shorter hours or working from home (WFH). Alternatives include, staggered hours, flexitime, compressed hours, job sharing and hybrid working.

Hybrid working is where employees travel into the workplace for some of the week and work remotely for the remainder. This is likely to become more prevalent. It also has the benefit of allowing employers to save money by reducing their office space. We have seen a tendency for employers to come up with Hybrid Working policies and think this will be a sound defence if people request something different. This may help but policy is not one of the eight valid business reasons for saying no to a request for something which better suits the employee.

What to do

The first thing to do is to ensure that the employee has set out clearly what they want, and that they have documented how they think that any adverse effects to the employer can be overcome. Many employees overlook this stage, as their primary focus is ‘it’s all about them’.

It is advisable to follow the process set out in your Employee Handbook. The whole process should take less than 3 months, and in our experience, it usually takes much less. Unless an extension is agreed with the employee, you have 3 months from receipt to consider the request and issue a decision, and follow an appeal process if so requested. It is no longer necessary to do every stage within prescribed timescales, but we would always advise employers to be prompt and avoid unnecessary delays. If there are good reasons for delay, e.g. holidays, agree this with the employee and document it.

Unless you are simply accepting the request, a meeting should be arranged with the employee as soon as possible following receipt to discuss the request. After the meeting, you should send a letter to the employee setting out your decision and the right of appeal. An appeal meeting should be held as soon as possible after the appeal is lodged, and the outcome communicated as soon as possible following the meeting.

You must be able to justify your decision. A thorough factual investigation of the viability of the working pattern sought is key. You should gather as much information as possible to allow you to assess the request fully. Be wary of views such as ‘we do not have part time jobs’ or “it will set a precedent”, these are not valid responses.

Where a request cannot be agreed, think about other options that could be reached as a compromise solution. This is your chance to show that you are a reasonable employer with a ‘can-do’ approach to problem solving and compromise, which Tribunals will look favourably upon.

Conduct the meeting with a positive attitude which demonstrates the spirit of actively trying to reach an outcome that works for both of you. Be careful not to be dismissive (or to be seen to be dismissive) of the proposal from the outset. The purpose of the meeting is to explore the request with the employee and to consider all the options.

We have reproduced the ACAS Guidance on handling the meeting:

Discussing the request

You should set up a meeting to discuss the request with your employee before deciding.

It can help to talk about:

  • the change they’re asking for
  • why they want the change
  • any problems you see with making the change
  • any other options, if the change is not possible

It’s a good idea to hold the meeting somewhere private, where you can talk confidentially. If you cannot meet face to face, you could also discuss it over the phone.

If your employee wants to bring someone to the meeting

Your employee might ask to bring someone to a flexible request meeting, for example a co-worker or trade union representative.

There’s no legal right for them to bring someone, but it’s good practice to allow it.

Allowing the employee to bring someone can:

  • show your process is open and fair
  • make the meeting more relaxed
  • reduce anxiety or stress for your employee
  • give your employee someone to talk through their options with

Decide based on logic and the facts of each case avoiding the fear that you might ‘open a can of worms’. Just because you are able to agree the arrangement for one person does not mean you will be able to do so for another.

Ensure that a refusal falls within at least one of the prescribed business grounds. This needs to be clearly stated in your explanation of why the ground(s) apply. The prescribed business grounds are currently:

  1. the burden of additional costs;
  2. detrimental effect on ability to meet customer demand;
  3. inability to reorganise work among existing staff;
  4. inability to recruit additional staff;
  5. detrimental impact on quality;
  6. detrimental impact on performance;
  7. insufficiency of work during the periods the employee proposes to work; and
  8. planned structural changes;

We would recommend explaining all the relevant reasons not just reciting them.

Issues Arising

You might receive multiple requests within a team. Consider the potential impact of granting all of the requests. If this is not possible, then adopt a fair system to decide which requests are granted and which are not. It can be difficult for employers to achieve a balance and make fair decisions when managing multiple requests, especially when requests made for childcare reasons could be riskier to decline compared to those made for personal reasons. As requests can now be made for any reason, perhaps the fairest approach is to deal with the requests on a first come first served basis, and accept as many as are workable. However, it is always worth carrying out a ‘risk assessment’ to identify which (if any) are most likely to lead to claims against the organisation if refused and making your decision based on those risks.

Legislation does not specifically provide for the use of trial periods as such, but it remains open for an employer and employee to agree the terms on which any new arrangements are entered into, including that they will apply initially only for a set period of time and are subject to review. Trial periods can work for both parties because once agreed, the changes are a permanent change and the employee should not be allowed to make more than one request a year.

You should carefully monitor how well (or badly) it is working, and notify the employee of the outcome of the trial period. Issue a new or amended contract to reflect the new arrangement and the start date (or at least ensure there is a clearly documented variation to the contract). You should make it clear to the employee that this is a permanent change, and they can only request a further change after twelve months. Ideally, the employee should sign a copy of the revised contract which you can then retain in their personnel file.

The employee cannot insist on a trial period, although in appropriate cases an employee may be able to argue that an employer should have offered a trial period as part of dealing reasonably with their request. An employer may, therefore, need to consider using trial periods and be ready to explain why a trial period was not feasible in cases where it rejects a request. The length of a trial period should be no longer than required to make a fair assessment of the proposed arrangements.

It is well to remember our mantra:

It is a right to request, not a right to demand and receive

We would, however, advise clients to keep an open mind, and seek to solve the problem fairly and positively.

CIPD View

Sensible guidance from the CIPD Includes:

  1. Try to encourage a creative approach to flexible working for all employees – even in job roles that haven’t traditionally been seen as suitable for flexible working.
  2. Ensure full-time jobs are not squeezed into part-time hours.
  3. Ensure ongoing access to development and career conversations for flexible workers.
  4. Measure and evaluate flexible working, and learn from trials using quantitative and qualitative measures.
  5. Consider the facilitators and barriers at manager, team and individual levels.

In our experience, individual Managers can still be dismissive about whether flexible working ‘will work here’. They may lack experience of managing flexibility, have met difficulties with it in the past, or simply feel they have too few resources to make it work. Busy Managers may also resist any change that they think might be disruptive or add to their own workload. It is important to acknowledge such concerns. They need to be given positive suggestions for how to overcome them, and be able to point to possible benefits of trying a new approach. Just because you have had a negative one-off experience with flexible working, or lack confidence or trust in managing people more flexibly, this is not a good enough reason to refuse a request. Each application must be treated on its merits.

Except for pregnancy itself, requests are not confined to women. Employers need to remember that men can also bring flexible working requests, and you no longer have to be a carer of a child or relative to do so – it is about personal choice.

Flexible working is a hot political issue, with many demands for reform, so the Department for Business, Energy and Industrial Strategy published its consultation document on how the proposed overhaul would work in practice. There are several proposals under consultation: including making it a day one right to request flexible working; assessing whether the eight proscribed reasons are still valid; requiring employers to suggest alternatives if rejecting the request; and using flexible working on a temporary basis. Any change is unlikely to take effect quickly.

The CIPD has published new practical guidance on hybrid working, to supplement guidance recently published by ACAS on the same topic. Both publications were commissioned by the Government’s flexible working taskforce, which has recommended that flexible working should become the ‘default’ for all workers.

However, the pandemic has clearly demonstrated the opportunities offered by new ways of working. It is impossible to visualise things going back to the way they were. With roles where flexible working arrangements are possible, both employers and employees can reap the benefits – particularly around attracting and retaining diverse talent, and living up to corporate culture and values. The expectations of both employees and employers have shifted. Employers who can offer a full range of flexible working models and not just pay lip service to the statutory regime will be seen as progressive and looked on favourably by those who value these arrangements. Flexible working has now become a vital tool in attracting and retaining the best talent.

 

 

You are welcome to raise any questions with our Consultants, who will be pleased to advise you on any element of the issues arising from this newsletter.