Flexible Working – fact or fiction? How to handle requests after 30 June 2014

The current situation.

The right to request flexible working is certainly not new, having been around for over 10 years. At the moment the legal right to ask for flexible working is not available to everyone by any means. You have to be an employee (not a casual or agency worker for example); you also need 6 months continuous service with your employer. Furthermore, at the moment you also have to satisfy various other requirements, including being a carer of a child or a dependant adult for example.

So, what is changing?

This is all about to change significantly. The right for an employee to request a contract change will be available as before to all employees with 6 months service. However the big change from 30 June is that no care commitments need be involved in requests after this date.

This is not just about going part time! The requests may involve a change to working hours; a different shift pattern or perhaps swapping shifts; going part time; even to work from another location – perhaps from home a day or two each week.

So, for example, an employee may request a move from working a 40 hour week over 5 days, to working four 10 hour shifts; or perhaps seeking to work mornings only to devote more time in the afternoons to a hobby or study course; or someone can request working part time as they approach their chosen retirement date. It need no longer involve a care commitment.

The new procedure.

Once a formal written request for flexible working is received, the Employer  should follow the new ACAS  guidelines –  including holding a meeting within certain timescales, allowing the Employee to have a Companion, and providing for the right to Appeal if the request is turned down. However the good news is that the current strict statutory timescales are also disappearing in June; it will be left for each employer to handle flexible working requests in “a reasonable manner” –whatever that means!

However it is expected that the request will be fully dealt with within a 3 month period of being made.

It is worth remembering that this is only about the right to “request” flexible working. This does not mean that every request can be agreed. Businesses have rights too you know! Customers have to be satisfied, costs kept under control, a service provided etc etc. Whilst the Employer does need to genuinely consider each request, if at the end of the day, the request does not suit the business; it can, and in reality should, be turned down.

When an employer receives more than one request, they are not required by the law to make value judgments about the most deserving request.  An employer should consider each case on its merits looking at the business case and the possible impact of refusing a request.

ACAS even recognises that sometimes it might not be possible to decide and in these instances an employer could get the agreement of the employees concerned to consider some form of random selection such as drawing names from a “hat” to decide – particularly if unable to distinguish between all the requests. It would be good practice to make this approach known to all employees from the outset in a flexible working policy.

If I grant one request, do I have to agree them all?

No, that is not the case! If one request is granted, and another comes in from someone else, this has to be looked at on its own merits. The fact that the first request was agreed demonstrates that the Employer is ok with the process overall, not negative. Also granting the first request means that the business case has changed which could well justify turning down the second one. Remember though to go through the various stages and not just flatly reject any requests, as this could still result in a tribunal complaint.

What’s not changing?

These changes mean that more requests for flexible working are likely to be made.

Whilst there are some big changes, a number of important aspects remain the same, including;

  • The request must be in writing
  • The request must contain certain specific supporting information
  • Only one request per year can be made.
  • If the Employer cannot agree the request, a meeting with the Employee is required.
  • The Employer should have a specific reason for saying no.
  • Employees should be allowed to bring a companion with them.
  • It would be good practice to offer an Appeal if the request cannot be granted.

Managers will need to be aware of these changes from the spring of 2014, and should be given guidance on how to handle a flexible working request. If a Manager is unsure about granting a particular request, case law suggests that a trial period should be considered.

Because more requests are likely to be received from women than men, this still opens up the possibility of the issue turning into a Sex Discrimination claim for the unwary.

Employers of all sizes should have a policy on how they will approach the requests to work flexibly from 30 June this year. Larger businesses should include training on this issue for their line managers.

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MYTH BUSTER: “Agency workers become your employee after 12 months.”

Well actually, they don’t – providing the Employer takes care to avoid a few pitfalls – read on!

Most (but not all) Agency Workers do not have a contract of employment with any of the Agencies they work with. As such they are not generally entitled to some of the employment rights that employees enjoy, such as unfair dismissal, paid maternity leave and redundancy payments. So, when a business hires in an Agency worker the person is not an employee – of either the hirer or the Agency.

Since October 2011, Agency workers rights have improved quite a bit thanks to Regulations. After 12 weeks working on an assignment with the same hirer, an Agency worker now becomes entitled to the same basic terms of employment as the employees they are working alongside doing similar work. Put simply, this means that their basic pay, hours, breaks and holiday entitlement have to at least match those of the employees of the hiring Company. It is the duty of the Agency to ensure that this is complied with.

These new rights do not automatically convert the Agency Worker into an employee, even after a certain period of time with the hirer. What can happen however is that a contract of employment becomes “implied” through custom and practice, This can happen where the Employer treats the Agency worker as one of its own staff for long enough for the relationship to develop into an implied employment contract.

This is almost a natural consequence of the relationship continuing for any length of time; the worker feels more and more like one of the team.

It is important for Employers to remain aware that an Agency Worker is not their Employee and they should not share in some of the benefits that only go to employees, such as offering discounted products or travel allowances for example. Employers are also advised not to use Company procedures such as the formal disciplinary or performance management policies when dealing with Agency Workers; these are written for “employees”, so do not use them with an Agency worker.

Another example. One client is a major motor manufacturer. They hold daily team meetings about production, and Agency workers take part in these. However, once a month, senior management travel to the UK from the Parent business to talk about how the business is performing. This meeting is identified as being for employees only, so Agency staff do not participate.

This is the right approach to take, as it avoids the Agency workers starting to feel employed by the Business!

Need some more advice?

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700


Zero Hours Contracts – why all the fuss??

Casual and Zero hours contracts have been with us for many years within Employment Law, and are perfectly legitimate arrangements (at least on paper!); so why are they such a high profile issue of late?

The Labour Party saw enough evidence to call a “summit” meeting to discuss the topic and one MP even suggested recently that Labour would ban their use, which is a radical and unnecessary step. Despite all the hype by political parties, many workers appear to be relatively happy to have a casual relationship with an employer; working when it suits their requirements, and rejecting assignments when it is not. On the flip side, evidence suggests that some Employers have been misusing these arrangements.

How common are Zero hours contracts?

There is conflicting evidence of their use in modern workplaces. The Office for National Statistics put the number around 250,000; whilst the Chartered Institute of Personnel Management, CIPD, suggested that around 1 million workers was a truer reflection (based on a labour market survey in 2013). Because of this, further research is being undertaken to obtain more accurate information on the numbers of workers affected.

No-one is forced to accept one of these contracts; but in a recession with jobs hard to find, some workers no doubt feel they have little option other than a zero hours contract.

In the CIPD survey, just 14% of staff reported that their employer often fails to provide them with sufficient hours each week which is probably where the politicians are focused; but this suggests that 86% are broadly ok with the arrangement.

Misusing these arrangements

Sports Direct is facing a tribunal claim over this very issue. Lawyers representing an ex-employee are alleging that 20,000 of the firms 23,000 workers are on zero hours contracts and were denied employment rights as a result, including a bonus share scheme – offered only to “employees”. If the figures are accurate, this does appear to be a very high percentage of the staff on such contracts, and the case may probe why so many staff were engaged on such contracts. The outcome will be of considerable interest to employers and workers alike.

So what actually is a Zero Hours contract?

Employment relationships differ in all sorts of ways, and this has a marked effect on the employment “rights” of the person. Essentially it is an ‘on call’ arrangement between Employer and Employee. Zero hours contracts are used to cope with varying staff requirements, where the Employer is under no obligation to offer an Employee work but, when it does, the Employee is required to accept the offer. Because there is no obligation on the Employer to provide work, there may be gaps between work “assignments”, which means that the worker never has enough continuous service to obtain many employment rights.

The term “zero” hours is a little misleading as (again referring to the CIPD report) the average hours worked each week on this type of contract is nearly 20. The “problem” with this type of arrangement is that the worker cannot budget easily as income fluctuates and could even be nothing, hence the title of the contract. The industries with the highest proportion of employers using zero hours contracts were hotels, catering and leisure (48%), education (35%) and healthcare (27%). The workers were generally in low skilled roles and on low incomes.

A different kind of employment relationship is a Casual Agreement. A Casual Worker Agreement is often used when employers have variable demands for staff; such as a care home with varying degrees of room occupancy for example. Under a casual work arrangement, the Employer has no obligation to offer work to an individual and (importantly different from the Zero Hours arrangement) the individual is not required to accept the work when it is offered.

Casual workers are also not considered to be employees working under a contract of employment because there is no mutuality of obligation and, under this arrangement, there is again no continuing employment relationship between assignments.

As a zero hours or casual worker is not classed legally as an employee, they are usually not entitled to receive rights relating to things like grievance, disciplinary, maternity and paternity, sick pay and other employment benefits.

In summary, the contracts themselves are perfectly legitimate and there is no reason to ban their use. However, research and possibly even case law, may indicate that they are open to abuse, particularly in a period of recession when the employer is in a strong position to “force” workers to accept these arrangements and then puts pressure on them to work whatever hours suits the business. If this is the case we can expect legislation to bring a fairer balance into the relationship.

What to find out more about different types of contracts? We offer a wide variety of Employment Law training courses and even have an excellent Full Day Course available on Contracts of Employment. Why not get in touch below for more information?