Case law on Flexible Working

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Author: Jackie Bolton

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.

The Pandemic has made many employers more aware than ever of the clear overlap between employment issues with health and safety practices.

As we start to gradually return to a more normal working life, employers need to be aware of what is on the changing health and safety horizon, post pandemic.

PPE Regulations

An important update to regulations concerns PPE. A term much used during the pandemic.  Personal Protective Equipment applies in many other areas, aside from protecting people from infection.

The PPE Regulations, 1992 currently require that every employer provide suitable PPE to “employees” who may be exposed to a risk to their health or safety while at work. The amended regulations mean that from April, this duty will be extended to ensure that agency and temporary workers – so-called “limb (b)” workers – are also covered by the legislation.

The definition of “worker” can be found in the Employment Rights Act 1996. The definition has two limbs, (a) and (b):

  • Limb (a) refers to those with a contract of employment. These workers are classified as employees under the Health and Safety at Work etc Act 1974, and have always been within the scope of the existing regulations.
  • Limb (b) describes workers who work under a contract for service, e.g. self-employed contractors, and casual (zero hours) workers. These individuals have not been covered by the PPE regulations up to now.

So, from 6th April, all workers will have to be provided with suitable PPE free of charge, be they casual, agency workers, subcontractors and the self-employed, if the nature of their work so requires the wearing of suitable and sufficient PPE.

The decision to extend protection to Limb (b) workers who carry out casual or irregular work, was prompted by a 2020 High Court judgment, which concluded that the UK had failed to adequately transpose aspects of two EU Directives into UK law post-Brexit. The High Court ruled that UK implementation of EU law should extend to limb (b) workers.  The HSE, after consultation, have now updated the PPE Regulations accordingly.

So, whether you work in healthcare, tree surgery, manufacturing, agriculture or any other sector where workers need protection to allow them to carry out their roles, if a worker needs protective equipment, it will be the ‘employer’s’ responsibility to make sure they have it.

What does this mean for employers?

Up to now, many employers have resisted providing these groups of workers with PPE. They have often argued, for instance, that it was up to either the agency supplying the labour to pay for the PPE, or that the agency workers themselves supply, e.g. their own safety footwear.

This is especially true if the worker could only be on site for a couple of days at most.  So, there are likely to be some interesting conversations ahead.

For most employers, the changes to the regulations will involve very little change, as most organisations will likely have already been providing PPE based on the nature of the role itself rather than the status of the person doing it.

In the case of employers who largely rely on workers – for example food delivery companies and construction companies – it will be a significant logistical and financial commitment having to now provide safety equipment to all their workers, where previously they would just have made it a condition of work that one was worn, with the worker or their firm having to supply their own.

The Highway Code

In January, the Government announced, without much fanfare, the introduction of the new Highway Code.

Many employers will have to make sure that relevant employees are briefed on the new code. Particularly if they employ drivers, and especially if they are in transport.

The changes to driver behaviour could be significant, as the new code introduces new responsibilities for drivers and road users in a strict hierarchy. Broadly speaking, the larger, the faster and more dangerous the mode of transport is to other road users and pedestrians, the more those drivers have to take care and give priority to less protected more vulnerable users.

This means that particularly in transport, large trucks and trailers present a much greater threat than vans/minibuses, and cars in turn, present a much greater threat than motorbikes and cycles.  The objective of the hierarchy is to ensure “a more mutually respectful and considerate culture of safe and effective road use that benefits all users.”

Full details of the changes in the code can be found here, and you should make sure that your drivers are aware of them.

Employer’s Liability

The issue of vicarious liability and employer responsibility is often raised in circumstances when an employee while at work, driving a business vehicle, seriously hurts, or worse still, kills others on the road, particularly a pedestrian or cyclist.  If the employer has done all that is reasonably practical to inform, instruct and train their drivers on safe driving, then that various liability can be substantially reduced.

So, it’s not enough to just send out a briefing sheet, make sure that you capture evidence that drivers have been properly informed of the new Highway Code, and they sign to understand that they are aware of, and will follow, the new hierarchy of measures. Indeed, if you wish to completely reduce vicarious liability, send your drivers on regular (typically every 3 years) advanced driver training.  Your insurance company will usually offer a discount on your premiums if you do this.

One change that has crept under the radar is that the 2022 update prohibits any driver from using their handheld device for anything, including taking videos or photos, scrolling through playlists or playing games – even if the vehicle is not moving. While mobile phones can be used for hands-free calls, payment at tolls or booths and satellite navigation, they’ll need to be securely fixed.

This update finally pulls the Code in line with the Law, banning all unnecessary – and arguably dangerous – uses of mobile phones behind the wheel. Distracted driving is the second leading cause of collisions, after drunk driving.  In line with the revised penalties introduced in 2017, motorists face a £200 fine and six penalty points, if caught touching their mobiles during their journeys. This further reinforces the need to insist that employees do not use mobile phones, and to ensure that they are not phoned from work.

Additionally, the new Highway code requires appropriate training, as these vehicles will be classed as work equipment, so the duty to ensure that drivers are competent to drive is part of the Provision and Use of Work Equipment Regulations, known as PUWER for short.

Also, part of these regulations is that employers have a duty of care to ensure that the vehicles used for business purposes, whether they are owned by the organisation or by the employee, are roadworthy, properly insured, MOT’d and serviced. They should also be checking regularly on driving licences, disqualifications and penalties, and ensuring their drivers are properly trained.

There have been calls to reverse the changes, but this is unlikely to be a successful campaign, so they are here to stay.

At BackupHR, we constantly highlight and emphasise the fact that driving is the riskiest activity we do in our day-to-day lives. Yet, because it is also regarded by most of us as a standard life skill, employers often wrongly assume that holding a driving licence is sufficient proof of competence.  In health and safety law, that is not the case, which is why making sure that your drivers are competent, safe and hold up-to-date knowledge when in front of the wheel, is essential.  Ask yourself when was the last time you looked at the most recent version of the Highway Code? It is probably the same for many of the people employed to undertake work-related driving.

Apart from the safety issues, this new set of rules will impact your business. It might not be that obvious, but fines, points and loss of driving licence can impact on an employee’s ability to perform their responsibilities.

 

 

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

In 2022, there will be an additional Public/Bank Holiday to mark Her Majesty the Queen’s Platinum Jubilee. The Spring Bank holiday (normally due to take place on the last Monday in May) will, therefore, be moved to Thursday, 2nd June, with an extra holiday on Friday, 3rd June, creating a 4-day weekend.

This means that in England and Wales, the schedule for 2022 looks like this:

Date                                              Public Holiday  (Dates in italics are not the official holiday)

Saturday 1 January 2022            New Year’s Day

Monday 3 January 2022               Substitute day for New Year’s Day

Friday 15 April 2022                      Good Friday

Monday 18 April 2022                   Easter Monday

Monday 2 May 2022                      May Day Holiday

Thursday 2 June 2022                  Spring Bank Holiday

Friday 3 June 2022                       Platinum Jubilee Bank Holiday

Monday 29 August 2022              Summer Bank Holiday

Sunday 25 December 2022         Christmas Day

Monday 26 December 2022        Boxing Day

Tuesday 27 December 2022        Substitute Day for Christmas Day

All employees are entitled to a set number of days off work each year by way of paid leave. The minimum statutory annual leave entitlement is 5.6 weeks’ paid holiday per year, which is equivalent to 4 weeks plus 8 Public/Bank Holidays. An employer may offer enhanced rights over this legal minimum under the terms and conditions stated within their employment contracts.

However, by law, Public or Bank Holidays do not have to be given as additional paid leave, although an employer can choose to include Public/Bank Holidays as part of an individual’s statutory annual leave entitlement. If so, this essentially means that if your place of work is closed on some or all Public/Bank Holidays, you can require employees to take these days as part of their paid holidays. Equally, you may choose to pay your employees for Public/Bank Holidays on top of their normal leave entitlement, or allow employees to take them as extra holiday days, but without pay.

In the context of any organisation that remains open on a Public/Bank Holiday, it’s again up to the employer to decide whether or not an employee needs to work those days.

In essence, the rules relating to whether employees are asked to work, or not, Public/Bank Holidays, and whether or not any Public/Bank Holidays are included in the overall paid annual leave entitlement, are a matter of what is clearly expressed in the contract of employment. Whether Public/Bank Holidays are in addition to, or inclusive of the employee’s statutory or contractual annual leave entitlement, will depend on the wording within the contract of employment.

Entitlement to the additional Public/Bank Holiday in 2022

It is important to note that employees do not have an automatic right to paid time off for an extra Public/Bank Holiday. Employers are advised to check the wording of their employment contracts, and communicate with employees about whether or not they will be required to work on the additional Public/Bank Holiday in line with the terms of their contract.

We have set out below the most commonly used phrases relating to Public/Bank Holidays that we have seen in employment contracts, and what they mean in terms of the employee’s right to have paid time off work on 3 June 2022.

Contractual wording Entitlement to paid time off for an additional Public/Bank Holiday
1.

“20 days holiday per annum plus Public/ Bank Holidays”

 

 Yes – employees will have a contractual entitlement to take paid time off on the additional holiday as the wording on holiday entitlement in the contract is not limited to the normal/usual Public/Bank Holidays. Therefore, there is a contractual entitlement to paid time off on all Public/Bank Holidays – including Public/Bank holidays which are in addition to those normally observed.
2.

“28 days holiday per annum”

 Potentially – where the contract is silent on Public/Bank Holidays, the employee has the ability to request booking from their 28-day holiday allowance any of the Public/Bank Holidays, including the additional Public/Bank holiday, subject to Management approval. However, there is no increase in holiday entitlement as a result of the additional Public/Bank Holiday.
3.

“20 days holiday per annum plus 8 Public/Bank Holidays”

 

 Potentially – similar to above.  The contract is silent on which Public/Bank Holidays are included within the employee’s holiday entitlement, and, therefore, an employee has the ability to request booking the additional Public/Bank Holiday as paid time off in June 2022. Although this would mean that the employee will not be entitled to one of the later Public/Bank Holidays in the year. We would recommend this is clarified to the employee at the time of booking annual leave.
4.

In addition, you will also receive pay on or in respect of each of the eight Public/ Bank Holidays as listed below:
New Year’s Day, Good Friday, Easter Monday May Day, Spring Bank Holiday, Late Summer Holiday, Christmas Day, Boxing Day.

 No – where there is a list of Public/Bank Holidays contained within the contract, the employee will only be entitled to receive paid time off on those named Public/Bank Holidays listed (whether this list is some or all of those usually observed in England and Wales). Employees with such wording in their contract will be entitled to paid time off on 2 June 2022, as this is the date the Public/Bank Holiday referred to as the “Spring Bank Holiday” has been moved to.  There is no contractual right to the Platinum Jubilee Public/Bank Holiday of 3 June 2022, only by the discretion of the Employer.
5.

“20 days holiday per annum plus the usual Public/Bank Holidays observed in England and Wales”

 No – as the additional Public/Bank Holiday is not usually observed in England and Wales, so employees would not be entitled to take paid time off on the additional Public/Bank Holiday.

The wording at point 4 above is what most of our clients will have, although it is important that you check your templates versions.

Even where there is no contractual entitlement to take the additional Public/Bank Holiday as paid time off, many employers, as a gesture of goodwill, will decide to allow their employees to take the additional holiday.  If that is not possible for operational reasons, an employer may choose to provide time off in lieu as an alternative. The goodwill lost through not offering an extra day’s leave in 2022 will often far outweigh any marginal cost savings gained from not giving the day off, or from requiring employees to take the extra day from their existing holiday entitlement.

Previous approach to time off for additional Public/Bank holidays

We previously enjoyed an additional Public/Bank Holiday in 2011 (to mark the wedding of the Duke and Duchess of Cambridge) and 2012 (for the Queen’s Diamond Jubilee). Therefore, when considering whether to allow employees paid time off for the additional Public/Bank Holiday in 2022, we would recommend considering what has been done previously. If employees have previously been offered paid time-off, or time-off in lieu to mark an additional Public/Bank Holiday, to adopt a different approach in respect of the 2022 additional Public/Bank Holiday may cause a negative reaction from employees (in particular, those with long enough service to have been working when this happened previously).

Requests for time off work

Even though employees have a right to a minimum number of paid days holiday each year, employees are not normally entitled to pick and choose when they take this time off. Employers need to manage staff rotas to ensure that they have the necessary available cover at all times to ensure business continuity.

To maintain good employee relations, it’s important for employers to handle any requests for time off fairly and consistently. As an employer, you should also be prepared for an influx of annual leave requests covering Monday, 30 May to Wednesday, 1 June 2022.  If your workplace closes on weekends and Public/Bank Holidays, the extra Public/Bank Holiday will probably mean that many of your employees will seek to benefit from 9 consecutive days off work: from Saturday, 28 May to Sunday, 5 June 2022.  As it is highly unlikely that you will be able to accommodate every request, a strategy will need to be considered in advance.

The three key considerations will be:

  • Decide on a fair approach whilst balancing operation needs;
  • Early communication about whether or not certain groups of the workforce may, or may not, be required to work the additional Public/Bank Holiday in line with stated contractual terms;
  • Set a start date and deadline for holiday/time off requests;

 

 

 

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

There are some important changes to statutory rates of pay that the Government have already announced, to take effect in 2022.

National Minimum/Living Wage Rate Increases

The National Living Wage is to rise by 6.6%  which is the biggest cash increase ever. It will go from £8.91 to £9.50 per hour.

At the same time, the National Minimum Wage (NMW) rates will be increased as follows:

  • from £8.36 to £9.18 per hour for 21 to 22-year olds;
  • from £6.56 to £6.83 per hour for 18 to 20-year olds;
  • from £4.62 to £4.81 per hour for 16 & 17-year olds; and
  • from £4.30 to £4.81 per hour for apprentices;

If you provide some form of staff housing as part of the contractual arrangements, then the daily accommodation offset will apply. This will change from the current rate of £8.36 per day to £8.70.

Increased Statutory Rates

The rate for 2022/23 for Statutory Maternity (SMP), Paternity (SPP), Adoption (SAP), Parental Bereavement (SPBP) and Shared Parental (SShPP) Pay are set to increase from £151.97 to £156.66 per week.

Additionally, the rate of Statutory Sick Pay (SSP) is also set to increase from £96.35 to £99.35 per week.

The average earnings an employee has to earn to be entitled to these payments is set to increase from £120.00 to £123.00; this will be the first increase to this rate for two years.

Implementation

Exact dates of implementation are still to be confirmed, and it is worth noting that they do not all usually increase on the same date. It is expected that SMP, SPP etc. will increase on 3 April 2022, and SSP will increase on 6 April 2022. The NLW and NMW rates go up from 1 April 2022.

The rates for Statutory Redundancy Pay, Statutory Guarantee Pay, and Tribunal Awards are not yet announced.  We will send an update as soon as the new rates are published. They are expected in March.

 

 

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

Mental health issues will affect one in four people at some point in their lives, and have a significant impact on employee wellbeing. Between 3rd April and 3rd May 2020, in the midst of the first pandemic lockdown with many workers unexpectedly finding themselves working from home, 2.6 million adults in the UK reported that they “often” or “always” felt lonely.

The pandemic has demonstrated just how much friendships and connection mean to us. As well as being a deeply corrosive experience in itself, chronic loneliness affects our mental and physical health and even mortality. Tackling loneliness is complex, and needs a response from all parts of society. Lockdown meant no socialising with others in person, and while this might have come as a relief to some, to others it resulted in increased feelings of loneliness. Even before coronavirus, the mental and emotional toll of loneliness within our society was a growing worry for employers and the Government. Now, with millions of us having been forced to self-isolate, keep ‘socially distant’ and work from home, it is an even more pressing challenge.

What is it?

Workplace isolation can be defined as a perceived absence of support from co-workers and Supervisors, and lack of opportunities for social and emotional interactions with the team. It happens when we have a mismatch between the quantity and quality of social relationships that we have, and those that we want. When defined like this, it becomes easy to see how workplace isolation can contribute to feelings of loneliness, particularly for those who need a greater amount of social and emotional interaction than others. Loneliness is experienced across all ages.

Some of these issues create a vicious circle. For instance, poor health/disability meaning a person cannot work and is stuck at home, can increase people’s risk of being lonely, which then leads to their health worsening, impacting their employment prospects and exacerbating feelings of loneliness.

Social wellbeing encapsulates the power of bringing people together at work to improve their health and wellbeing, through better relationships and support networks, building on the World Health Organisation’s definition of health as “a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity.”

The concept of “social wellbeing” deserves a place alongside mental, physical and financial wellbeing strategies that are now commonplace in progressive workplaces, but in the UK, we have some way yet to go. For instance, a study by Relate found that 42% of people surveyed didn’t have any colleagues they would see as a close friend.

Why it matters

By tackling loneliness and supporting employees to build social connections, employers can ensure a more productive and resilient workforce. Workplaces where employees have a strong sense of organisational identity are more able to withstand the effects of recession and maintain performance.

Over the last 20 years, the number of people living on their own has increased by 20% and today, 48% of us believe that people are getting lonelier in general despite being so closely connected by technology. We have never been so well connected as a society as we are now, through tools like video conferencing and social media, but despite this connection, we’ve also never been more isolated.

Although we are all susceptible, evidence indicates that some of us are more likely to suffer the negative implications of workplace isolation than others. We can be alone and not feel lonely, and inversely we can feel lonely even when in a relationship or surrounded by others.

Loneliness is a subjective – and often painful – feeling that has more to do with the quality of our relationships and social interactions than the quantity. Researchers have been studying the effects of loneliness for decades, but it hasn’t been examined in the context of the workplace until recently.

Why it matters at work

Employers have a role to play in supporting the wellbeing of their employees and reducing loneliness. Our social connections at work – with peers, Managers and customers/service users – are one of the biggest overall drivers of job satisfaction. Good quality, meaningful connections are associated with better outcomes in terms of quality of work, better wellbeing and greater engagement in work.

The negative implications of workplace isolation can lead to decreased job performance, and negative work-related wellbeing, loneliness, and a decrease in emotional and psychological wellbeing. All of which can have negative organisational consequences, such as absenteeism, increased rate of turnover and an adverse impact on company culture

Persistent loneliness can increase the risk of developing serious health issues. It is linked to increased risk of coronary heart disease, stroke, depression, cognitive decline and dementia. It increases stress hormones impacting our immune function. It is as bad for our health as smoking 15 cigarettes a day, and worse than obesity, increasing the risk of premature death by 29%.

It can negatively impact mental health playing a role in mental disorders such as anxiety, paranoia and depression. More than a third of us (42%) have felt depressed because we felt alone. It can increase our chances of indulging in risky habits such as drug-taking, and is also a known risk factor in suicide.

When loneliness strikes at work, it becomes as much a business issue as a health issue. Loneliness often results in an emotional withdrawal from the organisation. Lonely people tend to be less committed, creative, collaborative and attentive, and both the quality and the quantity of their work can deteriorate. It has also been identified as a factor in workplace burnout.

How to recognise loneliness

Loneliness is a subjective experience, so there are no “hard and fast” rules about what it looks like. Many people may also hide their feelings for fear of embarrassment, or because they don’t want to appear weak, and this can make loneliness difficult to identify.  Conversely, others might seek more physical contact through handshakes or hugs, and seize opportunities to talk. So, don’t be misled by apparent extroversion.

The best approach for Managers is to take the time to get to know and really understand your people. This will help you to recognise when someone is feeling disconnected, or left out by the rest of team. Watch for changes in behaviour and body language too. If they start looking “down,” avoiding interaction, or their performance suddenly dips, then there’s a potential sign.

Listen to other team members’ concerns, too – they might be more aware of their colleagues’ feelings than you are.

What employers can do – generally

Address it from the top, by looking at culture and infrastructure. There are a wide range of actions which employers can take to enhance social wellbeing, and tackle loneliness in the workplace:

  1. Raise awareness of loneliness and help to overcome the stigma. If you have in-house HR and/or safety, ask them to put this on their agenda.
  1. Communicate any suitable employer benefits, e.g. employee assistance programmes (EAP). Put in place support structures, such as mental health first aiders to spot the signs of loneliness, and on how to sensitively approach lonely employees. Signpost people to external support services, e.g. relevant charities.  All of these encourage employees to use which give employees the opportunity to talk to someone confidentially about how they feel.
  1. Support and encourage Line Managers to act, such as training to spot the signs and symptoms of loneliness, and on how to sensitively approach and signpost employees who may feel lonely.
  1. Encourage employees to broaden their work network, reaching out to colleagues in other teams whom they may not work with day-to-day.
  1. Review the support provided to employees during key life transition points (for example caring for a dying loved one, bereavement, parenthood, or an impending retirement).
  1. Encourage flexible working (wherever possible), enabling employees to socialise whilst juggling responsibilities at home. Conversely but importantly, allow flexibility for employees to work from the office if they prefer, as being forced to work from home can be isolating. Create opportunities to regularly bring people together, and invest in technology such as video conferencing.
  1. Encourage positive relationships at work, making sure people have enough breathing space to have a reasonable level of informal conversations with their colleagues during the working day.
  1. Measure work-related stress and make a concerted effort to reduce it. Stress at work can cause friction, strain on relationships, lower levels of teamwork and cooperation – all of which can contribute to feelings of loneliness.
  1. Offer training on issues that improve relationships, such as conflict resolution, listening skills, teamwork, emotional intelligence, inclusion, and mindfulness.
  1. Consider a diversity & inclusion strategy to check you are meeting the needs of minority groups and using opportunities, e.g. networking, to reduce loneliness.

Management Action

There are many actions which Line Managers (and HR) should be doing to help employees who may be “suffering in silence.” Some of these actions are dependent on senior approval, but not all.

  1. Communicate with employees by having regular check ins, and asking employees how they feel. Managers or team members are probably most likely to identify if someone could be lonely, perhaps through things that they say in day-to-day conversation. As loneliness may not be easily to identify, it is important that Managers are checking in with employees regularly. A simple ‘how are you?’ can give employees the space to share and raise any issues that they are experiencing. Try starting internal meetings with wellbeing check-ins, or casual updates on people’s day. Remember that employees may feel shy or embarrassed mentioning that they’re having a tough time, so be ready for a one-to -one. That’s why a compassionate approach is so important.
  1. Create opportunities for employees to connect or reconnect with others, even if they can’t see each other in person. That can mean organising social activities after work. If working remotely, online quizzes, team calls and even group exercise classes can, as a result, help employees socialise with each other from home. Remember to ask employees if they want to participate in online social activities, and what they would like to do. Avoid relying solely on one form of social activity here – we can all sympathise with suffering from Zoom fatigue. Mixing things up and trying new approaches should increase levels of engagement.
  1. Take particular care with new employees. Make them welcome and monitor them, particularly if they work from home. Some new recruits are able to seamlessly work remotely, whilst others struggle, despite the job role and level of organisational support on offer being similar to what they were used to.
  1. Do team-building right. Whether in or out of the office, it can be rewarding and doesn’t have to be expensive to be effective. Build a team that has a shared direction. Purpose gives meaning to people’s efforts, and a shared purpose builds camaraderie. So, counter the energy-sapping effects of loneliness by getting your team engaged in the wider impact of its work. At the same time, keep a lookout for negative behaviours, such as rudeness, bullying or harassment, that risk damaging team spirit, and deal with these effectively. Be clear with your team about the types of behaviours that you would like to see, and work with individuals on any interpersonal skills that they need to develop. Aim to build a team that has shared values. This will help to avoid conflict and seclusion.
  1. Deal with issues. If you suspect that one of your people is lonely or isolated, work on building up their trust. When people feel like you really care, and that their voice matters, it’s easier to open up. Simple gestures make a difference.
  1. Encourage good relationships. You can’t force people to become friends. But you can encourage them to form bonds, by creating opportunities for collaboration.
  1. Remember the little things. The smallest gestures can make the world of difference. Things like making someone a coffee, or just remembering to say “hello” in the morning will show them that you care, and that their wellbeing matters to you. Random acts of kindness like these will likely have a positive knock-on effect on the rest of your team, too. Avoid inadvertently excluding someone just because you don’t relate to them as well as you do with other people on your team. Leaving someone out of the lunchtime chat, for example, can be very hurtful – and may even damage their career, particularly if you use this time to talk about work or new opportunities.
  1. Tackle exhaustion. Apart from all the other health and safety risks; the more exhausted someone is, the lonelier they can feel. Take care that your team members avoid exhaustion. Encourage them to work regular and sensible hours, to take proper breaks, and to agree clear boundaries that protect their work-life balance. And be sure to follow your own advice!
  1. Remember virtual colleagues. Remote team members are particularly susceptible to loneliness, so be sure to reach out to them regularly. Save a few minutes at the end of conference calls or video chats to catch up with them, and to ask them how they’re doing. Do not be afraid to break away from tech-based forms of communication occasionally. Email and messaging apps are great when you want to save time, but picking up the phone to have a chat with a remote team member is far more personal, spontaneous and should reassure them that they matter.
  1. Look after yourself. Managers are not super-human and can also feel lonely, especially if they focus on work to the exclusion of their own relationships and mental health.

Conclusion

Loneliness is a painful emotional response to feeling isolated.

Now that more of us are working from home, we need to be creative about how we can boost our sense of connectedness from afar – to ensure both our wellbeing and our ability to stay productive and engaged at work.

 

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

The end of the transition period, after leaving the EU, on 31st December 2020 meant we needed to review the right to work section of these forms in the light of new immigration law. The good news back in January when we sent out our Newsletter No. 141, was there are no significant changes to either the List A or B documents.

From 1st July 2021, new rules for right to work checks now apply. EU, EEA, or Swiss citizens need to provide evidence of lawful immigration status in the UK.  Employers are not required to retrospectively check the status of any EU, EEA, or Swiss citizens you employed before 1st July 2021.

Irish citizens can continue to use their passport or passport card to prove their right to work.

All other EU, EEA and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You’ll need to check their right to work online using:

  • a share code;
  • their date of birth;

You can also check someone’s original documents instead if they do not have a UK immigration status that can be shared with you digitally.

You could face a civil penalty if you employ a worker and have not carried out a correct right to work check.

The Home Office have now issued new guidance for Employers, including revised List A and List B documents from July 2021.  This means that we need to inform all of our clients to update their procedures.  If you use our Employment Details Form then you will find the revised right to work checks lists contained within.

The new starter and existing worker employment details forms referred to in this article can be found by clicking the links below, for you to adapt and use to suit your purposes.

Existing Worker Employment Details Form

New Starter Employment Details Form

 

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