Category Archives: flexible workforce

A Guide To The New Flexible Working Regulations

Flexible working for all was implemented on 30 June 2014. Previously it was only available to women with children and carers, now all employees with 26 weeks continuous service can make a request. Many employers may be panicking at this prospect but there is no need as any request can be turned down for business reasons. In this blog I provide a guide to the new flexible working regulations.

There are quite a few changes to the procedure for making such a request, with the old, prescriptive, statutory regime being replaced by a “requirement to deal with the request in a reasonable manner”. This revised approach is reflected in a new ACAS Code.

The basic right to request flexible work is unchanged. Employees can still make up to one written request every year, which the employer can refuse on any of the existing eight business grounds. The maximum compensation for a failure to comply with the new legislation remains at eight weeks’ pay, with a week’s pay currently capped at £464 per week (2014).

Any request must now be dealt with quickly and within a three month time scale, at the end of which the employer must notify the employee of its decision. The ACAS Code recommends that employers should talk to an employee privately after receiving a written request, allowing employees to be accompanied at any discussion, then consider the request carefully before informing the employee in writing of any decision. The employer should then discuss with the employee how and when the changes might best be implemented or allow an appeal.

Although there is no requirement to allow an appeal, the ACAS Code suggests that employees should be allowed to appeal against a rejection. The appeal should be concluded, if possible, within the three month period. If more time is needed for any reason, a longer period should be agreed with the requesting employee.

The employee must make a written application which should also:

– state that it is an application made under the statutory provisions;

– specify the change that the employee is seeking and when they wish the change to take effect; and

– explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.

It might be beneficial for an employer to draft a standard template to accompany a revised policy on flexible working.

An employer can treat a request as withdrawn when the employee, without good reason, has failed to attend both the first meeting arranged by the employer to discuss the employee’s request or appeal and the next meeting arranged for that purpose. The ACAS Guide suggests that the employer should find out and consider the reasons for the employee failing to attend both meetings before reaching any decision to treat their request as withdrawn. Employers must notify the employee of their decision.

Employers retain the right to refuse a request to work flexibly on the existing statutory grounds, which include cost; quality; performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes. Although neither the Code nor the Guidance require it, employers should not only specify which of the statutory reasons applies when refusing a request, but also provide sufficient explanation as to why that reason applies. The Guidance gives examples of each of the business reasons.

Employers should also:

– Ensure any agreement to change employment terms is recorded in writing;

– Be very clear about what is being expected of the employee who will be working flexibly. Trial periods can be used if an employer is unsure if the flexible working may not work.

– Review current policies and procedures and amend in the light of the current changes.

All requests should be treated fairly and consistently to avoid discrimination. Keeping written records is essential.

Shiftwork – the Pros and Cons

Source: Flickr/Seattle Department of Transportation

I was recently invited by BBC Radio Northampton to speak about shiftwork which is a form of flexible working. In this blog I look at shiftwork – the pros and cons.

Shiftwork can take various forms – it can be just straight nights, as opposed to just working days. The double day shift can be 6am to 2pm one week then 2pm to 10pm another week. The continental shift can be a rolling timetable of an early morning shift, followed by an afternoon shift followed by a night shift.

For an employee shiftwork can have lots of advantages. It may suit their lifestyle if they have no ties. An employee can beat the traffic when working shifts as they may not meet peak hour traffic. They can get stuff done – go to the bank, get their hair cut or the car MOT’d for example. They can get their shopping done when other people are at work and the children at school. They can attend appointments with the doctor or hospital and not need additional time off. Shiftwork may work with an individual’s body clock and they can receive better pay as often the employer will pay a shift enhancement.

The downsides, however, can be they may not be able to use public transport to get to work and back home for example in the early hours of the morning. Shiftwork could wreak havoc on their personal and social life. It’s no good if all the parties are taking place whilst you are at work and your partner might not be too happy. It can wreck a person’s body clock causing tiredness and fatigue. There could be a threat to health. It has been reported that there is an increased risk of getting cancer when working nights regularly for example and individuals could be at risk of a vitamin D deficiency if they receive inadequate exposure to sunlight.

For an employer the benefits of shift work can be the ability to keep the production line flowing for example with a 24/7 operation which can meet customer demand. With shift work an employer can provide continuous cover as is needed in the NHS and care homes for example. Employers must however, be mindful of employment law related to shift work, notably health and safety and the Working Time Directive legislation.

Employers should do a health and safety risk assessment for night workers looking at workload activity, rest periods and breaks for example. With the Working Time Directive employers should ensure there is an eleven hour gap between shifts. Employees should be given one day off every seven days or two days off every fourteen days. Night workers should be given regular health checks.

Flexible Working – The Advantages and Disadvantages

From 2014 the government proposes to extend flexible working to all employees in an effort to promote economic growth through a strong and efficient labour market having undertaken a consultation exercise in 2011. Flexible working was brought into force during 2003 and already parents and carers benefit from being able to make flexible working requests. ACAS will be developing a Code of Practice on flexible working to support the new law.

The new legislation will replace the current statutory procedure where employers will need to consider flexible working requests within a specified time frame; employers will have the duty to deal with requests in a reasonable manner within a reasonable time frame. This is being introduced as the government consultation identified that many employers find the existing statutory procedure too prescriptive and time frames inflexible. A statutory code of practice will give guidance on the meaning of reasonable. Employers will be provided with guidance on how to tackle conflicting requests when received at the same time. The current requirement to have 26 weeks qualifying period of continuous service will remain.

Flexible working can take many forms – part time working, term time working, job-shares, home-working, compressed hours and flexitime and brings with it both advantages and disadvantages.

The advantages to businesses include being able to hold onto valuable staff, having a wider talent pool, reducing absenteeism, increasing commitment from employees and improving productivity. A business might also be able to extend opening hours due to the wider availability of the workforce. The government consultation exercise highlighted some employer concerns over the extension of flexible working such as an increased burden and threat of employment tribunals for increased declines in flexible working requests if they can not be accommodated. Smaller businesses have to ensure they have enough staff available to cover the required hours. This could be more difficult due to lower levels of employees compared to larger organisations.

Flexible working benefits employees with a better work life balance so that they have more time to spend with their families or undertake hobbies. Childcare costs may also be reduced. With employer permission they can travel into work and avoid rush hour traffic, therefore arriving more refreshed. For those employees who are allowed to work at home all or part of the week, there are the benefits of reduced fuel and motor maintenance costs.

However flexible working without a supervisor being present may cause difficulties for some employees who may be unable to take the initiative or need direction with their duties. Employees who are not personally motivated may struggle to stay on task and give the job “their all” so that productivity is affected. Another disadvantage could be that communication and team working may be affected.

The government are confident that the introduction of flexible working for all with bring huge benefits to businesses as well as encouraging a more motivated engaged workforce. Time will tell…..

Are Zero Hours Contracts Legal?

Yes zero hours contract are legal. They are contracts that are provided to casual and sessional workers. They are ideal for an employer wishing to have a flexible workforce to meet fluctuating work demands. Zero hours contracts are used extensively in the hospitality industry and social care sector. They operate on a mutual no obligation relationship; the employer has no obligation to offer work and the worker has no obligation to accept the work. For the employer it is advantageous to have a bank of casual staff to call upon when increased demand arises and to be sure that someone will be available to do that work.

Zero hours contracts only command pro rata holidays in terms of employment rights and it is important to keep records of hours completed to calculate holiday pay. Holidays can then be paid quarterly or, if appropriate, on a rolled up basis carefully following the rules for rolled up holiday pay. Workers with zero hours contract should be used on an ad hoc basis only so that additional employment rights can not be pursued in an employment tribunal.