McRoberts Employment Law Seminar – 2 April 2014

Flexible Working Arrangements
Statutory currently for flexy time, compressed hours and working from home. Eligibility – only if child under 17 to adult requiring care.
After 30th June ALL employees can make this request.
Currently statutory request will be replaced with a more flexible one that is must deal with in a reasonable fashion and must be concluded inc appeal within three months.
If an employee makes a request and they feel that it has not been suitably addressed then he or she can take it to tribunal.
Not all employees will have a defined characteristic, could be deemed as discriminatory. If an employee feels that employer is unreasonable then they could raise a discrimination claim.
ACAS suggests that this can be granted on a first come first served basis. You might need to set out minimum staffing requirements and help manage employees expectations.
Competing requests may create problems, one seek compromise, two draw names out a hat! Circumstances that could not be differentiated are few and far between. If you have already granted someone a request that can be used as a reason for turning down the next.
Criteria can be considerate but cannot use a value judgement. All this will demand on how cases are resolved.
Policy should be broad and dealt with on a case by case basis. Avoid criteria for people with protected characteristics. Be careful that you can justify your decision.
There are advantages of flexible working practice including less absence, greater motivation, feeling of being valued.

Holiday Hotspots
The basic principles:-
EU Working time directive – 4 weeks
UK Law – 5.6 weeks
Contract – some employers might give more for longer service

Accrual of holidays happen when employee is off sick. Use it or lose it is not acceptable / lawful if employee is off sick. Carry over must be allowed. This can be somewhere between nine and fifteen months if someone is off long term. 15 months after the end of the holiday year could be set out on staff rules.

Calculation of holiday pay
If off on holiday you should get your normal wage.
British Airways case. Pilot flying pay and time away from base allowance, claim was that credit for this should be paid on top of holiday pay. Underlying aim that workers should not be financially disadvantaged if off on holiday.
If allowances were intrinsically linked with an element of profit and a degree of permanence then these would have to be matched.
Sales commission schemes eg British Gas case. Unlawful deduction where holiday pay was not calculated including the regular commission.
Third case is at EAT that deal with how to treat overtime Neil and Freightliner Ltd. Five days of 7 hours but always worked more than that as a norm, more like 8.5 per day. Tribunal agreed that overtime was intrinsically linked.
Remedy
Claim can go back over years and one claim could become many. Suggest audit of overtime worked. Could change arrangements (high risk) to address in future.

Employment Tribunal Barriers
Government trying to reduce the number
Claims have to pay £250 fee for hearing paid several weeks before tribunal so brings forward crunch times. Tribunal numbers have reduced dramatically as a result.
ACAS from 6th April option for early settlement. This could be worth a punt for claimants so that they do not have to pay the tribunal fee.
Employer penalties
Currently there is only award of a compensation but going forward when there are one or more aggravating features. Clear principles might take a while to establish. Penalties could be construed as a revenue generator especially where there is a 50% discount for faster payment of penalties.