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

Recruiting and Appraising

Whether you record your year from January to December of April to March I am sure you will agree that this quarter has zoomed by.

Now that the Big Freeze has left us we are all looking forward to Spring. April can be a busy yet exciting time for business. For many it is the beginning of the financial year often meaning a fresh look at recruitment, marketing, budgeting and planning.

If you are recruiting you should be mindful about the wording you use for your advertisements. Employers can be liable for discrimination before a person has even worked for you so it important not to use unnecessary descriptions that imply you are looking for a man, woman or a person of a particular age.

Your job advertisement is just like any other marketing material. It should speak directly to the type of person you are trying to recruit.

If you are a fun and flexible business the language which you use should ooze fun. If you are a traditional business which is looking for corporate applicants then the wording you use should be reflective of that.

A diverse workforce is a strong workforce. Not only should be seeking not to discriminate against applicants of various ages, cultures and gender but we should also be seeking to employ people with disabilities.

Craft your recruitment process in a way that is disability friendly. It is perfectly acceptable to state that you are a disability aware employer and that you are seeking to employ someone from all backgrounds.

April is Autism Awareness month. Job candidates with autism do not always thrive in a traditional interview but they may be the best person for the job. People with autism often have a great ability to focus on a task, recall data and pay attention to some of the smaller details.

One of the ways which you can make your recruitment process inclusive is to have a working interview. Invite all candidates to work with you for an hour or two and see how they perform in action.  You could also use specific questions rather than general questions on an application form so that a person who is autistic will find it easier to answer correctly.

Whilst it is great to recruit it is also important to nurture your existing staff. If you are not doing appraisals, you may want to reconsider. Appraisals can help you to find out any ambitions that your staff may have. Once you know that an employee would like to become a supervisor, a manager or to broaden their skill set you can create a path to help them reach that destination within your business.

Lots of businesses lose talent because it has not been nurtured or appreciated and this can be both a financial cost and loss of skill to an employer. Use appraisals to tell your staff what they are doing well and how they can improve.

If you have concerns about a team members, work, performance of attitude you can also use this opportunity to document and discuss your concerns. Early intervention can reduce problems with staff later in the year.

An appraisal should be a two way communication tool. Create an open environment where staff can tell you about things which you could improve as an employer. This will make your working environment a better place for current and future staff.

Whether you are recruiting, or appraising April is the perfect opportunity to review your current employment contracts and employment policies. Ensure that they are still working for you and that they are still legally compliant.

If you would like HR Support or Employment Law advice please contact us at http://www.orchardemploymentlaw.co.uk