Employment Law Update. Flexible working, Furlough and some interesting Q&As!
Email: tim@tcsbusinessservices.com
Web: www.tcsbusinessservices.com
Furlough Scheme Changes
As of 1 July 2021, employers with staff on furlough started to contribute 10% of employees’ pay as the government cut its contribution to 70%. This is on top of employer’s NICs and pension contributions. Further, companies will now start paying off deferred vat and coronavirus loans.
In August, the government’s contribution will be reduced to 60% leaving employers to contribute 20%, before the scheme finishes at the end of September.
Of course these changes will make it more expensive for employers to retain staff on furlough so there is a real possibility of job losses not too far down the line.
Busy times ahead!
In the past month I have been concentrating on developing my online presence with my TikTok account - Tim The Business Doctor. Having realised there was a need for simple employment law advice for both employers and employees I decided to try my hand at doing a few videos. Surprisingly they have been a huge success and have generated a healthy following.
The TikTok platform provides the opportunity to ask me, the Creator, a question. I have received literally hundreds of questions and simply can't answer them all, so I have collated the main themes and attempted to address them in the newsletter on the Q&A section below.
Flexible Working from day one of employment?
The Flexible Working Bill was introduced in Parliament earlier this week by MP Tulip Siddiq. The Bill seeks to provide the right to request flexible working to all staff from the first day in their job.
Requests to work flexibly have become very common as a consequence of national lockdowns and the huge number of people who were/are working from home. Many employers are happy for home working to continue, but others are understandably keen for staff to return to office based working. Many have sought a compromise and offered part home work and part office work.
The current right to request flexible working only arises after 26 weeks of work for the same employer and now applies to all employees. Requests to work flexibly should be in writing and employers should treat all request reasonably, responding within three months. Requests must not be dismissed outright but should be based on sound business reasons detailed below:
1. Extra costs that will damage the business.
2. The work cannot be reorganised among other staff.
3. People cannot be recruited to do the work.
4. Flexible working will affect quality and performance.
5. The business will not be able to meet customer demand.
6. There’s a lack of work to do during the proposed working times.
7. The business is planning changes to the workforce.
Employees are not entitled to appeal against a refusal to work flexibly and neither are they permitted to make another flexible working request within one year.
An employee can ultimately complain to a tribunal if their flexible working request is not dealt with in the correct manner. Full details of how to manage a flexible working request can be found here or on the ACAS website.
I always recommend that flexible working requests by any employee, regardless of whether they have been employed for 26 weeks, should be considered. If an employer simply dismisses the request because of lack of service the employee will, undoubtedly put the same request in when they have the statutory right. It's far better to deal with the request sooner rather than later, in my opinion.
Furthermore, I would also consider granting an appeal if the employee is not happy with the decision. A disgruntled employee is more likely to head off to a tribunal than one who has been given every opportunity to plead their case. A tribunal would most likely look very favourably on an employer which has offered an appeal and shown that they have given considerable thought to the request.
Deliveroo riders are self employed!
There has been considerable interest recently in the status of workers in the gig economy. Categorising a delivery driver as self-employed, as opposed to a worker or employee, has significant benefits for the hiring business. Recent court decisions have held that Uber drivers and the infamous Pimlico Plumbers were not genuinely self-employed but rather, they were workers. The benefit to those affected workers is that they are entitled to the National Minimum Wage, accrue holiday pay and qualify for Statutory Sick Pay, which as a self employed person, they didn't.
The question of whether a particular person is self employed or not has vexed the courts for decades. Businesses have sought to draft contractual agreements which attempt to define a self-employed relationship, but the courts have often looked behind those agreements to determine the true relationship between the parties.
One of the significant factors in determining that relationship is whether the person under contract can provide a substitute if they are unable to attend work themselves. If they can't, it steers towards a master/servant relationship, i.e. one of employment, whereas if a substitute is permitted it is more likely considered a genuine self-employed relationship.
Of course this is not the only factor but will have a significant bearing on determining the issue. In the case of the Deliveroo riders, they are permitted to provide a substitute and so they were held to be genuinely self employed. This is not the end of the matter and no doubt there will be further appeals. The employment status of workers in the gig economy is likely to be the subject of debate for some considerable time yet.
A selection of TikTok Q&As and emails
Q Employer has given 8 working days notice of new terms and conditions of employment. Is this an acceptable amount of time?
A It depends! Simply providing a time in which to accept is probably not sufficient. What your employer must do is consult with you. Explain why they wish to alter the T&Cs and seek your agreement. Minor terms can be changed in your contract if there is a clause to cover that particular scenario. However, fundamental term changes such as pay, holiday entitlement, and working hours, should always be discussed fully with the employee before being implemented. If the employee refuses, the employer has two choices, remain as is or impose the changes unilaterally (fire and rehire). Unilateral changes will always leave the employer open to a tribunal claim if the employee resigns as a consequence, so the decision must always be based on sound business reasons.
Q Any tips on employers mistakingly not paying you and 7 weeks on they still say they will look into it.
A It is always sensible to approach your employer informally to ask why this money has not been paid. If that does not bear fruit you should raise it as a formal written grievance. Hopefully that will concentrate your employer's mind and the issue will be resolved. If not you have the right of appeal. If you're not happy with the outcome at the grievance appeal, your remaining option is to make a claim to the employment tribunal for an unlawful deduction of wages. You must contact ACAS in the first instance. Important: Tribunals have strict time limits. You have three months from the date of the last deduction in which to make your claim so, having waited 7 weeks I would get your skates on.
Q Can I be made to work Saturdays if I haven't worked them in 7 years?
A This is similar to the answer I gave above in respect of changing terms and conditions. Have you ever worked Saturdays or was it just you haven't in the last 7 years? If you have never worked them, then it would be hard to insist you do so without firing and rehiring. If your contract has a clause which gives the employer the flexibility to alter your hours/days of work and has done so in the past it is likely they can do this, but they should consult with you first.
Q I work as a security on the doors and do a 13 hour shift. Am I allowed any break as I work on my own?
A As I said in my video there are exceptions to the 20 minute break when working in excess of six hours. Just to recap on that point, if an employee works continuously for more than six hours they are entitled to an uninterrupted break of 20 minutes (an employer may provide for more). The break should not be taken at the start or the end of the shift as it is not then technically a break. Time spent walking to the canteen or wherever else the break is to be taken is included in the 20 minutes. The rest break can be unpaid.
So, on top the exceptions. In addition to excluding domestic servants (Regulation 19), the exceptions, or 'special cases', are set out in the Working Time Regulations 1998, Regulation 21. In your case Regulation 21(b) applies:
'where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers or security firms'.
Sadly you are not entitled to a statutory break. However, some employers will provide a relief guard if your working hours a particularly long. They still have an obligation under health and safety legislation to look after the health, safety and welfare of workers and breaks will undoubtedly fall within that remit.
Q Hi, I was wondering if you could help me. I am dyslexic and am not getting any support on computer, I'm even getting told off for taking too long typing.
A The question here is whether dyslexia amounts to a disability under the Equality Act. The general consensus of opinion is that it does. See this piece from the Dyslexia Association. Therefore your employer is under a duty to make reasonable adjustments in the workplace to cater for your disability, but only if they are aware it exists. My advice is to tell them you have dyslexia. They must then make the reasonable adjustments such as giving you longer to type, installing specialist software to assist you or doing anything else you can suggest which will assist you to work effectively with you. If you suffer a detriment or are dismissed as a consequence of your disability you may have a valid claim in the employment tribunal.
Q Do I have to notify my Health and Safety manager regarding a mini stroke that I had 4 months ago as it has caused me to loose around 70% of vision in my right eye? My other eye is absolutely fine. I’m due to have laser eye surgery in 3 weeks to stop pressure building up behind both my eyes potentially making my vision worse in my right eye. I might add that this is precautionary treatment.
A That depends on whether it is affecting your work. If you can perform your role perfectly adequately as you are then there is no need to inform your manager. My advice would be to wait until you have had the laser eye surgery and if it does deteriorate or you find it is impacting with your work I would advise you disclose it to your employer. If it has a substantial long term adverse effect on your daily life then it may be classed as a disability and your employer would be required to make reasonable adjustments for you (as in the question above).
Q I work for a catering company, contract is up in the next six months and I’m going to be transferred to the new company. What can the new company do and can’t do?
A This would be a business transfer where all your existing rights are transferred to your new employer. Your terms and conditions of employment are transferred over, so they would have difficulty altering your pay, holiday entitlement and any other fundamental terms. They can however, take measures such as going through a redundancy process if the is a valid business economic, organisational or technical reason for doing so.
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