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Flexible Working

Flexible Working – What you need to know
As a business, you may find that you are receiving more and more requests for your staff to work on a flexible basis. Many people are requesting job share arrangements, to work compressed hours or requesting to start or finish their working day earlier to enable them to deal with their domestic commitments.
Every employee who has at least 26 weeks continuous employment with their employer has the statutory right to request flexible working.
There used to be a much more detailed process but now the process is triggered when an employee puts their request in writing. Their request should set out how they wish to work flexibly, it should be dated and should cover why they think the request will work and how they will deal with any difficulties that may be caused to their colleagues.
You actually have a three month period (which are you can agree to extend) to consider any request, discuss it with the employee and notify them of the outcome.

In reality, most employers deal with applications far more quickly and you must make sure that you act reasonably.
The employee is only allowed to make one request in any 12 month period.I am text block. Click edit button to change this text.
Under the law, you can only refuse a request on one or more of the following grounds: –

The burden of additional costs
The detrimental effect on the ability to meet customer demand
Inability to re-organise work among existing staff
Inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Insufficiency of work during the period employee proposes to work
Planned structural changes
Whilst the law does not provide for trial periods with regard to a flexible working application, there is nothing to stop both sides agreeing to one and indeed this may be to both sides advantage.

You could suggest to the employee that you are not sure whether the request for work, so rather than reject the request now, you would like to agree to a trial period to see whether the arrangements requested are sustainable moving forwards.

The employee cannot, however, insist the trial period.

What would be a good idea to either issue a new contract setting out the terms that have finally agreed or at least reduce letter setting out what the new changes are, which parts the contractor changed and when they take effect from.

It would be advisable to get the employee to sign a copy of the letter to confirm they are happy with new changes.

It may also be advisable to at least set some dates to catch up with the employee and see how the new arrangements are working. This would particularly the case if a trial period has been agreed and it is important to make sure these dates are adhered to.
The law does not actually require you to hold the we would recommend that you do this as it shows again that you are acting reasonably. A right of appeal would be seen as a crucial part of any flexible working request.

There are no prescribed grounds for an appeal, so the employee is free to raise whichever points they want to. It will give you as a business a good opportunity to review the request and to see whether the gross refusal was correct. It would be advisable to have the appeal heard by someone who was not involved in the initial stages of the procedure.
Inevitably, any request that is turned down that will be very disappointing to an employee and they may try looking for other reasons to justify why you have rejected their request.

You should look at the practice of the business as a whole and if there is a history of always refusing a flexible working request, the business may be at risk of a claim of indirect sex discrimination. If you have also behaved unreasonably handling a flexible working request, the employee may try and argue constructive unfair dismissal


Do you still have questions about the coming new General Data Protection Regulation (GDPR)? Maybe you are not sure about what it will mean for your business and the measures you need to take to ensure your company doesn’t come under fire. Or, as a UK business owner, you are maybe wondering whether you even need to concern yourself at all with GDPR, now that Prime Minister, Theresa May, has announced an affirmative date to begin the process of leaving the European Union.  If this is the case, then look no further, we have some of the most frequent asked questions bellow.

Start your journey to GDPR compliance
The GDPR will have a significant impact on the way your firm processes personal data and will require considerable effort to comply with. Fortunately, Aeris Employment Law can help you, please contact Karin Henson on 0121 392 7479 or use our online contact form and we will give a callback.
This is the new governing legislation for collecting and processing personal data in the EU.
Very soon – in fact, it comes into effect on 25 May 2018 for all EU Member states, including the UK. The standards will apply after Brexit.

The government has also published the Data Protection Bill which will supplement the GDPR and will replace the old Data Protection Act 1998.
The GDPR applies to ‘personal data’ – this means any information which relates to someone who can be identified.
Whilst many of the principles that are already familiar under the Data Protection Act 1998 will remain the same, the GDPR has new requirements which will impact on the issue of consent and compliance.
Unfortunately, not – all employers will have to comply, regardless of their size if you process personal data.
This is all going to become a lot more complicated – the GDPR will restrict the use of consent as a justification for processing data. This is going to make life more difficult as the GDPR states that consent must be freely given, specific, informed and unambiguous.

General clauses in employment contracts trying to state that consent is given will no longer be a valid legal basis to justify processing employee data.

We will provide a further update on the issue of consent.
Currently, employers are required to provide employees and job applicants with a privacy notice setting out certain information. Under the GDPR, employers will have to provide more detailed information.

We will provide a further update with more details on the changes to privacy notices and changes to subject access requests.
No – the GDPR will impose a new mandatory breach reporting requirement and you will have to notify any possible breaches within 72 hours, whether the investigation is complete or not.
There is the potential for significant penalties to be imposed – up to 20 million euros or 4% of annual worldwide turnover, whichever is the greater.
No – in a recent case involving Morrisons, they were held to be vicariously liable for the actions of a disgruntled employee who leaked the details of 100,000 employees. The case is under appeal but if the appeal fails, Morrisons could be at risk of a significant fine.
Basically, this means that an individual can request for their data to be removed or deleted when there is no compelling reason for a business to continue processing that information. This has been watered down a little and in the GDPR legislation, it has been termed as the ‘right to erasure’.

This right will apply in certain circumstances:

when the data is longer necessary or relevant;
when the individual specifically withdraws consent to processing
personal data has been unlawfully processed in breach of the GDPR; and
the data must be erased in order for a controller to comply with legal obligations
If any of the above conditions apply under this right of erasure, it is the data controller’s responsibility to delete and remove the data. This should be done without any unreasonable delay but definitely within a month unless specific circumstances apply.

It is worth noting that this right is not absolute, and it is not unlimited either.

Disciplinary Procedures Issues

10 thorny issues in the disciplinary process and how to handle them

In any business, an employer will set standards of performance and conduct which they expect all of their employees to meet. It is inevitable that at some point or other, formal action will be needed as a result of an employee’s behavior.

Most companies will have their own disciplinary process but even if this process is clear, some difficult practical issues may arise. We have set out below some of the more common questions that are asked:

Employees have a statutory right to be accompanied by either a work colleague or a trade union representative. As an employer, you are not obliged to allow a family member to attend the hearing. You are also generally not obliged to allow a lawyer to attend a disciplinary hearing although you may wish to consider this (after taking legal advice) if the outcome of a disciplinary hearing could be that the employee loses the ability to carry out their career in their chosen field e.g. a teacher or a doctor.
In these circumstances, you should rearrange the hearing. If the companion continues to be unavailable, generally speaking, you should allow for two more rearranged dates and then, if the companion still cannot attend, ask the employee to either find a new companion or to agree that the hearing will take place without a companion.

If it is the employee who continues to be unavailable, you should be wary of proceeding with the hearing without the employee being present. There must be a compelling reason to proceed without the employee at the hearing and you must have exhausted every other avenue before proceeding down this route (see point 3 below).

What often happens when disciplinary proceedings are started, is that an employee will sign off sick.

This does not necessarily mean that you cannot proceed with the disciplinary hearing, but you have to exercise more caution and you need to take into account the reasons why the employee is signed off sick.

The first step is to see how long it is likely the employee will be off sick for and postpone the hearing until they are fit to attend. If it appears that the employee is likely to be off sick on a long-term basis, you could offer the following alternatives:

holding the disciplinary hearing off-site;
holding the disciplinary hearing by telephone;
offering to provide the questions in writing and for the employee to respond in writing
You could also suggest that the employee is sent to occupational health to see whether they are fit enough to attend a meeting as opposed to returning to their full duties at work.

This is a tricky situation but being off sick does not mean that as an employer you are unable to do anything at all. It is important to take legal advice when faced with this situation.
This can often be used by an employee to make the whole process far trickier to deal with.

There is no legal requirement on you as the employer to postpone a disciplinary hearing simply when a grievance is raised. It may be the case that the grievance can be dealt with during the disciplinary process as it is closely related to the disciplinary issues.

If the grievance is totally unrelated to the disciplinary issues, it will probably be appropriate for you to handle the two processes separately. If possible, you should have different people dealing with the two different processes. Of course for a small business, this can be very difficult to manage.
You have to let the employee know the information that you will be relying on when conducting the disciplinary hearing. This, therefore, means that you should send copies of all written evidence, including any witness statements, with the invitation letter.

The difficulties that can sometimes arise are when the person who has given the statement says that they want to remain anonymous or they do not want to be named. It is very important when you are taking witness statement that you advise the witness that their statement will form part of the investigation report/disciplinary papers and that you cannot guarantee their confidentiality.

If they insist that they need to remain anonymous, you need to understand from the witness what they are concerned about, whether their motives are genuine, and they are not holding a grudge. If you are of the view that their concerns are merited, you may have to provide a summary of their witness statement to try and anonymise this as far as possible.
Unfortunately not.

A criminal conviction on its own does not necessarily justify disciplinary action and it would have to have some direct bearing on their job, their relationships with their colleagues and perhaps relationships with clients.

In these situations, colleagues may well gossip if they find out what has happened but just because other employees may not be happy with how someone has behaved, does not on its own justify disciplinary action.

Each case will need to be considered on its merits. Please be aware however that if the employee says that the police are taking action against them and they have been advised not to provide any information so as not to prejudice their defence to a police charge, this does not mean that you have to wait until the outcome of the criminal investigation.
You do need to provide written reasons for dismissal and in any event, this is advisable to do so that you have a written record of why an employee was dismissed.

This is not so crucial for employees with less than two years’ service but if you have any concerns about possible discrimination angle that the employee may follow, it is still advisable to set out the reasons for dismissal in writing.
Any suspension must be on full pay. If you withhold an employee’s pay, you run the risk of an unlawful deduction from wages claim and also it will be viewed as a sanction that you have imposed without actually investigating the matter.
Once an employee has resigned with immediate effect, their employment effectively terminates. In most cases, there is often little point in carrying on with the procedure for an employee who has resigned. You would also need to exercise caution if you carried on the process without the employee’s involvement and referred to this later on in any reference as arguably, it would not be a fair process /decision.

There may, however, be external reasons why you need to carry on with the disciplinary process. This could be required by a regulatory body or the allegations are so serious that they may need to be reported to the police. In the public sector, for example, if the allegation was one of fraud and/or dishonesty, then there is merit in carrying on with the investigations and disciplinary process as far as possible to show transparency.
Secret recordings will only be admissible as evidence with the express permission of the tribunal. The tribunal would need to consider such an application and then exercise its discretion as to whether or not the recording should be admitted and if it is relevant to the issues being litigated.

As matters currently stand, tribunals are increasingly allowing secret recordings to be used as evidence as long as the recording is submitted as a transcript to both the tribunal and the employer.

Bad Weather Disruption

When bad weather interrupts business, this can cause some logistical headaches for employers. You should consider putting in place an Adverse Weather Policy and how you can keep in touch with your employees should severe weather stop them being able to come to work. You may also wish to consider whether or not you want to make any reference to adverse weather disruption in your contracts of employment.

You should remind employees in advance of the importance of following the absence reporting procedures, to urge employees to take great care if they do choose to come into work but also to remind them that they are expected to make some effort to try and come into their workplace. You may want to warn them that disciplinary action may follow if it transpires that employees have not at least tried to get into work.

With winter coming, we can expect to have some disruption to our ability to get to work. We have set out below some the common questions employers have when snow stops play:
Many employees may ask to take holiday to cover any absence due to bad weather rather than losing a day’s pay. This is, therefore, an option.

In theory, there is nothing to stop an employer asking their employees to take holiday to cover any absence due to bad weather but if you do, you must make sure you give them the right notice and of course it may cause some employee relations issues.
In the circumstances where you have made the decision to keep your business closed, you have to pay your employees their normal wage unless the employees agree to be temporarily laid off without pay – this is highly unlikely!

If employees are working from home, then you should pay them their normal salary.
All employees have the legal right to a reasonable amount of unpaid time off to care for dependents. This will cover the situation where for example a school is closed due to bad weather.

What is “reasonable” will very much depend on the circumstances of the employee and there is no timescale set out in the law as to how much time an employee can have off to care for their dependents.

Remember however this is emergency time off and your employee must inform you as soon as possible that they need to care for their dependents and how long they anticipate they will be off work.

Any such time off does not need to be paid but you may wish to consider whether to pay full pay in any event to foster good relations.
It is possible in this day and age of flexible working arrangements for you to say to your employees that they are not expected to attend the office but you do expect them to carry out as much of their work as possible from home.

In reality, many employees will even suggest this without you having to ask them to work.

Obviously, there are some jobs which simply cannot be performed at home but, if it is possible, then this certainly should be an option to consider in the case of bad weather disruption. Be wary however of trying to force an employee to work from home if there is no right in the contract for you to do this.
Under a contract of employment, if an employee is not working and they are not fulfilling their contractual obligations then in theory, you do not have to pay them. Employees are therefore not automatically entitled to be paid if they are unable to get to work because of bad weather.
However, from an employee relations perspective, this is likely to be viewed extremely negatively and business owners often have to make a distinction between what the law allows them to do and what is actually the “right thing” to do.

You are likely to be viewed as being a very harsh employer if you decide not to pay employees when, for reasons beyond their control, they are unable to get to work. You may also run the risk of grievances being raised if someone feels they have suffered an unlawful deduction from their wages or they have been discriminated against.

In this scenario, as the employer, you would have to pay them for any working time that they have missed as they were ready and willing to work but the transport was not available to take them to their place of work.
You may wish to consider whether staff will be allowed to wear warm clothing, whether you can bring in extra heating and you will also need to pay attention to vulnerable workers such as those with an underlying health issue or pregnant employees.

If the temperature is so low that working conditions are dangerous, you should send your employees home and you will have to pay them their full pay.

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