Flexible Working Uncovered

What is flexible working?

Well, in short, flexible working is a different way of working which will suit an employee’s needs and requirements, e.g. having a flexible start and finish time, or working from home.

All employees have the legal right to request flexible working – not just parents and carers. This is known as ‘making a statutory application’. However, an employee must have worked for the same employer for at least 26 weeks in order to be eligible.

Are there different types of flexible working?

Yes, there are indeed different types. These include: –

1. Job sharing

This means that two people carry out one job and split the hours between them.

2. Working from home

Sometimes, it can be possible for employees to do some or all of their work from home or somewhere away from the office.

3. Part-time

I think we all know what this means, but to clarify, it is working less than full-time hours (usually by working fewer days).

4. Compressed hours

This means that an employee could work full-time hours but over fewer days, e.g. instead of working 9am until 5pm Monday to Friday, an employee could work 9am until 7pm Monday to Thursday.

5. Flexitime

In this example, an employee can choose when he or she wants to start work and when to finish work (within agreed limits) but could still work certain ‘core hours’.

6. Annualised hours

In this instance, the employee is required to work a specific number of hours over the course of the year, but they have some flexibility about when they actually carry out that work. There can be certain ‘core hours’ which they work regularly every week, and the rest they work on a flexible basis or when there’s extra demand.

7. Staggered hours

Here, the employee has different start, finish and break times from other workers.

8. Phased retirement

In this example, older staff can choose when they want to retire, and so they are able to reduce their hours and work gradually.

A flexi-time case study

Employee perspective

Orchard Employment Law’s Personal Assistant, Lucy, works part-time and does flexi-hours at home. This is what she has to say about flexible working: –

“The one thing that I dreaded about going back to work after I had my son, was that my previous employer wouldn’t be flexible about the hours that I wanted to work and also that I would potentially need to take time off if my son was poorly etc. I basically didn’t want to be held ransom or made to feel guilty because my child needed me.

I have been working with Jemma since December 2017, working from home on Mondays and Fridays and in the office on Wednesdays.

My now three-year-old toddler goes to nursery on Mondays and Fridays (and to Nanny and Grandad’s house on Wednesdays) so working from home gives me the flexibility to be able to take him to nursery and pick him up, without the worry of having to battle rush-hour traffic and potentially being late for work.

During the nursery/school holidays, I work around my son, so will do an hour here and there when he is entertained by his toys or his own books, or I start at 7am before he wakes up and in the evenings when he has gone to bed. I also sometimes stagger my hours so that instead of doing all of them on Mondays and Fridays, I spread them out over Mondays, Tuesdays, Thursdays and Fridays. This means that I don’t miss out on spending quality time with my son, but still get my hours done.

Another advantage of flexible working and working from home is that if my son (or

myself for that matter) is poorly, I can still do my work but be at home to look after him without having to take time off sick or as a holiday.

The downside of working from home is that it can get a bit lonely at times. But Jemma and I always make sure that we talk at least once a day on the phone. And when I’m in the office on Wednesdays, I actually get to speak to adults and have a proper conversation.

I also know that if I have any issues that need to be dealt with urgently, I can email, text or phone Jemma (depending on the urgency) and not have to worry that problems won’t be dealt with until I’m actually in the office.

As some of you may know, Jemma and I have an office in a co-working space in Chatham, so when we are in the office we are able to not only bounce ideas off each other but also our co-workers, who will give us their honest opinions on our ideas and tell us if they think they will work or if we should scrap the idea completely. There are also always lots of treats in the kitchen area, which is never good for the diet, so it’s probably a good thing that I’m only in the office once a week!

Even though I only work in the office once a week, I still feel like part of a team. I do think that if I was always working from home then I would feel quite isolated and not part of a team but thankfully that’s not the case.

Flexible working with Jemma was the answer that I was looking for when I decided to get back into law after having my son. Working from home two days a week and in the office once a week is the perfect situation for me.

 

Employers perspective

Prior to starting the busienss, I had experienced the benefits of working flexibly and so I knew that I wanted to use some of those principles when I became an employer. By hiring Lucy on family-friendly terms has been beneficial in many ways.

I was able to secure a high calibre employee with over 15 years of legal experience because I was forthcoming in offering a family friendly method of working. I also believe that we have less absenteeism because Lucy is able to work extra hours in her own time.

However, this way of working only works because we have the correct systems in place. We have a good, real-time computer system which allows both myself and Lucy to keep abreast of work done with clients. We keep in contact by phone regularly and we have weekly face to face meetings to discuss client updates, business development and personal development.

I would recommend flexible working to any business.

If you would like more information about flexible working or any other HR matter. Please contact us at http://www.orchardemploymentlaw.co.uk

 

 

 

 

Worker rights for Pimlico Plumbers

A case heard at the Supreme Court last week could have a lasting effect on the so-called “Gig” economy here in the UK.

What is the “Gig” Economy?

The “gig” economy is described as “the labour market characterised by the prevalence of short-term contracts or freelance work, as opposed to permanent jobs”.

People who work within the gig economy will only be paid for the work that they carry out, e.g. couriers etc. Though sometimes they may be entitled to holiday pay.

Background

Plumber Gary Smith worked solely for Pimlico Plumbers and was classed as self-employed for tax purposes. Mr Smith paid self-employed tax and was VAT registered.

Mr Smith worked for Pimlico Plumbers for six years but after suffering a heart attack, he requested a reduction in his working hours from five days per week to three days. Pimlico Plumbers denied this request and Mr Smith was dismissed.

During his time working for Pimlico Plumbers, Mr Smith was required to wear the company’s uniform, drive the company’s branded van, work when he was told to, and could not pass any work to anyone else of the same qualification and experience.

Original Hearing

Mr Smith brought proceedings against Pimlico Plumbers at an Employment Tribunal in 2011, alleging that: –

  • he had been unfairly dismissed;
  • Pimlico Plumbers had unlawfully deducted amounts from his wages;
  • he had not been paid for a period of statutory annual leave; and
  • he had been discriminated against because of his disability.

The Employment Tribunal made the decision that Mr Smith had not been an employee under a contract of employment, and therefore could not complain of unfair dismissal.

However, the Employment Tribunal did decide that: –

  • under section 230(3) of the Employment Rights Act 1996, Mr Smith was a ‘worker’;
  • under Regulation 2(1) of the Working Time Regulations 1998, Mr Smith was a ‘worker’; and
  • under section 83(2) of the Equality Act 2010, Mr Smith had been in ‘employment’.

This meant that Mr Smith could proceed with the latter of his three complaints.

The Employment Tribunal made directions to consider these complaints substantively at a later date.

Pimlico Plumbers appealed this decision at an Appeal Tribunal and then at the Court of Appeal, but were unsuccessful at both attempts.

The Court of Appeal ruled that Mr Smith was a worker because of his lack of control over the work that he carried out (he was contractually obliged to do a minimum number of hours work per week) and also because he did not have the right to transfer his work to a subordinate.

Supreme Court Ruling

Pimlico Plumbers then appealed again to the Supreme Court but this did not go in their favour again.

The Supreme Court was asked to consider whether or not Mr Smith had the right to send a substitute to carry out any work he was given by Pimlico Plumbers. The Supreme Court found that Mr Smith was entitled to do this but that any substitute had to be under contract with Pimlico Plumbers.

Therefore, the leading feature of Mr Smith’s contract was one of an obligation of personal performance.

Another issue asked of the Supreme Court was whether or not Mr Smith was marketing his services elsewhere or whether he was an integral part of Pimlico Plumbers, and as such, whether Pimlico Plumbers was a client or customer.

The Supreme Court held that Mr Smith had some independence in terms of operational and financial obligations but that his services were marketed by Pimlico Plumbers. He was also subject to Pimlico Plumbers’ strict regulations (e.g. he was required to wear the company’s uniform, drive the company’s branded van, and work when he was told to etc). Therefore, Pimlico Plumbers was not a client or a customer.

This meant that Mr Smith was a worker and therefore had various employment rights including the right to be paid minimum wage and holiday pay.

Mr Smith’s complaints will now be sent back to the Employment Tribunal for it to make the final decisions.

Implications

This case will have a far-reaching effect on the gig economy and the rights of all independent contractors.

Other businesses who use independent or self-employed contractors could see a huge wave of claims made against them as a result of this ruling.

Charlie Mullins, CEO of Pimlico Plumbers, said “… thousands of companies across the UK, who use contractors in an honest and responsible way, remain exposed to huge potential claims in the future.”

However, it is highly unlikely that other cases, like those involving Uber and Deliveroo, will be stopped in their tracks.

All businesses have different ways in which they work. They also have different contracts and make different demands on their staff.

For example, some businesses will allow a worker to ask someone else of equal qualification and experience to do the job instead, but others don’t.

And that is one of the key tests of employment status.

If you would like any advice on the gig economy and how this ruling may affect you and your staff, contact us at info@orchardemploymentlaw.co.uk or call us on 01634 564 136.

New case could affect Notice Periods

You may well have seen in the news recently the reports of an Appeal Case regarding when a Notice Period starts in relation to the termination of employment.

What was the case about?

The case concerned Mrs Haywood, who was made redundant by Newcastle-Upon-Tyne Hospitals NHS Trust in 2011.

Having been informed that she was at risk of redundancy, Mrs Haywood had advised the NHS Trust that she would be on holiday from 19th April 2011 until 3rd May 2011.

The NHS Trust then sent three letters to Mrs Haywood on 20th April confirming that she was being made redundant with 12 weeks’ notice, which the NHS Trust advised would expire on 15th July 2011.

One letter was sent to Mrs Yahwood by recorded delivery and an advisory card was posted through her letterbox on 21st April. Mrs Haywood’s father-in-law collected the letter from the sorting office on 26th April and left it at her home on the same day.

Mrs Haywood returned from holiday in the early hours of 27th April and went straight to bed. She read the letter later that morning.

The other two letters were sent to Mrs Haywood by standard post and to her husband’s email address, which Mr Haywood read mid-morning on 27th April.

The important question raised by Mrs Haywood was, when was her letter of notice of termination deemed to have been received?

If Mrs Haywood’s notice period expired AFTER her 50th birthday, then she would be entitled to receive a higher pension but she would need to have been given her letter of notice of termination after 26th April 2011.

There was no clause in Mrs Haywood’s contract which expressly stated when notice applies and so the High Court found that the notice of termination was only effective once Mrs Haywood had actually read the letter of notice, which was on 27th April 2011.

Newcastle-Upon-Tyne Hospitals NHS Foundation Trust appealed this ruling which was subsequently dismissed by the Court of Appeal, which held that, because there was no express clause in Mrs Haywood’s employment contract which specified when a notice of termination is effective, the notice of termination only takes effect from the date it is received by the employee, giving them chance to personally take delivery of the letter containing the notice.

In this case, Mrs Haywood opened and read the notice on 27th April, meaning that her notice period expired on her 50th birthday and that she was therefore entitled to receive a higher pension.

What does this mean for Employers?

This ruling could have a major impact on employers, because the Court’s decision implies a term into all contracts of employment that notice to terminate the contract of employment will only take effect from the date on which the employee has read the letter giving notice (or has had reasonable opportunity to do so).

In order to reduce or remove the effect of this ruling, employers should,

  • where practical, give notice of termination to the employee in person and follow this up in writing.
  • If this is not possible to do, then the employer should send written notice of termination by recorded delivery, which will assist in proving that notice has indeed been sent to the employee.
  • The employee would then need to provide evidence as to why they did not have reasonable opportunity to read the letter.

However, the best way to mitigate the effect of this ruling is to include an express clause in your employment contracts to make in clear of when notice is deemed to take effect.

If you would like any more information on this matter, or for more information on what clause to put into your employment contracts, email us at info@orchardemploymentlaw.co.uk

Have you got staff who are on-call?

A recent case could have a big impact on employers who employ staff who work “on-call” and on “standby”.  Restaurants, Hotels, Care providers and Hospitals may have to revisit their policies following the case of Maztak v Nivelles Fire Service

Mr Matzak was a volunteer firefighter with the Nivelles Fire Service in Belgium, who was employed to work alongside professional, full-time firefighters to help with operations and standby services, which were arranged by rota at the beginning of each year.

All volunteer firefighters were paid an annual allowance for their standby work.

Under his contract of employment, Mr Matzak and other volunteer firefighters, as well as professional firefighters, were required to adhere to specific residence requirements, including: –

  1. To be domiciled or reside in a place so as not to exceed a maximum of eight minutes to reach the Nivelles fire station when traffic is running normally and complying with the Highway Code;
  2. During periods of standby duty, every member of the volunteer fire service serving at the Nivelles fire station must: –

 

  • Remain at all times within a distance of the fire station such that the period necessary to reach it when traffic is running normally does not exceed a maximum of eight minutes;
  • Be particularly vigilant so as to remain within range of various technical means used to call staff and to leave immediately, by the most appropriate means, when staff on standby duty are called.

Mr Matzak brought judicial proceedings against Nivelles Fire Service in December 2009, after his one-year probation period ended. The details of the proceedings were that his employer had refused to pay for his “stand-by” hours.

He also claimed that his employers had failed to pay acceptable compensation for his services as a volunteer firefighter, and, in particular, that his standby services should be classed as working time.

Although the Nivelles Labour Court upheld Mr Matzak’s case in March 2012, the Nivelles town appealed the ruling at the Brussels Higher Labour Court.

The Higher Labour Court partially upheld the appeal in September 2015, because under Belgium law “volunteers in the public fire services and the rescue zones as provided for in the law […] on civil security and volunteers in operational civil protection units do not fall under the definition of workers”.

After this ruling was made, the court was asked to determine the correct definitions of working time, in order to decide whether or not Mr Matzak’s standby services should be classed as working time or not.

All European countries must follow the Working Time Directive. The Working Time Directive provides minimum health and safety requirements for working time, including daily and weekly rest periods and annual leave.

“Working time” is referred to as “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”. “Rest period” is referred to as “any period not classed as working time”.

The court was asked to consider whether or not volunteers should be classed as workers and therefore included in the regulations under the Working Time Directive.

They were also asked to consider whether or not Mr Matzak’s standby work should be considered as working time under the Directive, despite him being at home whilst on-call “given the constraints on the worker at the time preventing him from undertaking other activities”.

The court found that Mr Matzak was indeed a worker, even though he held a voluntary position.

The court also found that if the standby period was excluded from the concept of working time, this would have a serious impact on the objective of ensuring the health and safety of the workers by granting them satisfactory breaks and rest periods.

The ruling will mean that there is more than likely going to be a huge deviation in legislation because staff who work “on-call” and “standby shifts” at home will be counted as “working time”.

This will have wide-ranging implications upon any employers who need their employees to keep to specific criteria regarding their working hours but which restricts their movements during their free time. 

All employers who have staff working on-call need to carefully consider whether or not they need to place significant restrictions on their employees’ activities when they are on-call.

It may mean that employees are working more than 48 hours each week. It could also have pay implications.

If you would like any further information or advice on this matter, please call us on 01634 564 136 or email us at info@orchardemploymentlaw.co.uk

Do you need to give an extra day as holiday this Easter?

You were probably as shocked as me to see that UK shops started selling Easter eggs on Boxing day and whilst I refused to buy Easter eggs before valentine’s day it makes sense for business to prepare ahead of time.

This year the Easter holiday is early with Good Friday being on 30th March. This may have a  direct impact on businesses whose holiday year runs from April to March in line with the tax year.

This is because the early arrival of Good Friday means that there are 9 bank holidays in this financial year instead of the usual 8. The impact will depend on the wording of the employment contract.

If an employment contract states that an employee is entitled to 20 days leave plus bank holidays they will have an extra days holiday this year. I am sure no staff will complain about that. However if your contracts state that employees are entitled to 28 days annual leave inclusive of bank holidays there will be no changes.

That being said employers may want to remember the following things about bank holidays.

 

  1. There is no legal right for employees to have bank holidays off.
  2. There is no legal right to be paid time and a half, double time or any extra pay for working on a bank holiday.
  3. Employers can impose annual leave on staff if they have a shut down period on bank holidays.

 

Of course these things are all subject to previous conduct and what is written in the Employment Contract.

 

If you would like help with Employment Contract, managing staff, HR or any Employment Law matters contact us via our website at www.orchardemploymentlaw.co.uk/contact

 

In the meantime, start stocking up on Chocolate and get ready to have a Happy Easter.