More flexibility required!
Proposals to revamp flexible working go no further than being able to ask earlier. Q&As and news
Hello!
Welcome to my new style FREE newsletter. I wanted to let you know that I have changed my email provider so from now on my newsletters will appear like this.
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Best wishes
Tim
The Business Doctor
Flexible working
It’s all over the news - new proposals for flexible working from day one with the intention of shaking up outdated working practices and bringing us into a 21st century way of working; based around home-working and family life.
So, is this really a major step change? Let’s look at the law as it currently stands.
The current position
The Flexible Working Regulations 2014 and Part 8A of the Employment Rights Act 1996 is where it’s at; specifically section 80F which provides the right to request a contract variation (flexible working request). Note, I say request, because it is nothing more than that. It is a request which can be refused for a number of legitimate business reasons, which I list later in the post.
Firstly, when dealing with a request to work flexibly, the employee has to satisfy certain criteria.
They must have been employed for a continuous period of 26 weeks.
The application must be in writing, state if a previous application has been made and it must be dated. The government has kindly provided a simple template letter in various formats specifically to be used for flexible working requests.
The employee is only entitled to one flexible working request in a 12 month period.
Once received the employer has up to three months to consider the application and can refuse on a number of business related grounds, namely:
it will cost too much,
they cannot reorganise the work among other staff,
they cannot recruit more staff,
there will be a negative effect on quality,
there will be a negative effect on the business’ ability to meet customer demand,
there will be a negative effect on performance,
there’s not enough work for the employee to do when they’ve requested to work, and
there are planned changes to the business, for example, the employer plans to reorganise or change the business and thinks the request will not fit with the plans.
As can be seen it’s never too difficult for an employer to refuse a request based on any of the above criteria. The employee can appeal and generally this should be concluded within the three month period.
Whilst an employee must meet the qualifying criteria to make a request, I generally advise my clients to consider all requests to work flexibly from day one in any event. If an employee intimates they would like to alter their working hours early on in their career and the employer insists on waiting 26 weeks, it does nothing to foster the employer/employee relationship. Why not deal with it now as almost certainly the employer will be dealing with it after 26 weeks and by that time the employee will probably be less willing to accept the reasons for rejection?
Remember a happy employee is generally a productive employee.
The proposed position
Well, it’s not a great deal different from what I have just set out and the I advice I give to my clients.
Flexible working requests will be a day one right and if an employer can’t accommodate the request, they will have to consider what alternatives they could offer by way of a compromise.
Most employers already consider alternatives as part of the flexible working process, so in a nutshell very little has changed. The most important factor is that the ability for the employer to refuse the request will remain, so at the end of the day it will still be a request which can be refused.
Further details of the proposal are contained in the official government press release. I’ll leave you to draw your own conclusions, but as I see it there will be no substantive change.
Q I work for a well known food chain, we constantly have online training to do but we have to do it at home but have deadlines to do the work otherwise we get moaned at for it being late etc. Do we have to do the work at home or can my workplace allocate time for it to be completed on shift instead?
A Does your contract refer to training? Check that first as it may stipulate when and where you have to undertake the training. I presume the training is mandatory in which case you must be paid to do it if it falls outside working hours, i.e at home. So, in answer to your question it all depends on what your employment contract states.
Q Can you work for a UK based company whilst abroad?
A In short yes. But working abroad will attract employment rights from the host country which may or may not be as beneficial as those at home. Further, there will undoubtedly be tax implications and you may end up being double taxed if you remain outside the UK for a prolonged period. This is an area where specialist advice should be sought.
Q I have 5 days holiday left and 9 days furlough counted as holidays without notice. What can I do as my employer says I don’t have any holidays left?
A Your employer should tell you when you are taking holiday by giving at least twice the amount of notice as the number of days to be taken. So, the 9 days holiday should have attracted a notice period of 18 days. If you were not provided with sufficient notice I would suggest your remaining holiday is still outstanding. So, if your employer will not honour your remaining entitlement raise a formal grievance with a view to taking the matter to a tribunal if it is refused.
Q Is a rest break paid or is it dependent on the company?
A The statutory minimum rest break default position is that you are not entitled to a paid rest break, unless of course your employment contract states something to the contrary.
Q Are you entitled to extra holidays the longer you have worked at a company?
A Some employers reward long service with additional holiday, but that would be a contractual benefit. From a statutory perspective all workers and employees are entitled to 28 days holiday (5.6 weeks full time), pro rated if you work part time. This is a legal minimum which does not increase the longer you have been in employment. Remember, bank and public holidays can be included in the 28 days entitlement.
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