With a week passing since the coronavirus job retention scheme portal went live on 20 April 2020, the initial consensus is that it is working surprisingly well. HMRC have published updates since the launch and at the last count on 23 April 2020 at least 435,000 claims had been submitted to benefit 3.2million employees.
A large number of employers will now be in a position where they have furloughed those employees who require furloughing. This is an ideal time to look ahead to the end of the coronavirus job retention scheme, currently ending on 30 June 2020, and start planning.
Post-Coronavirus flexible working
Since the lockdown, thousands of employers across the country have implemented home-working. Many of those employers may not previously have considered home-working to be appropriate for their business or simply may not have been in favour of home working.
In response to those employees who have had a taste of home-working and favour this, employers should be aware of what action employees can take and how they can respond.
Right to request contract variation
A statutory right to request a variation of an employee's contract of employment has been enshrined in the Employment Rights Act 1996 since 2014. The right is available to qualifying employees, being those with at least 26 weeks' continuous employment.
Qualifying employees are able to request a change to the following:
- The hours they are required to work;
- The times they are required to work; and
- The place of work (between their home and any workplace of the employer).
Employees can request the change on either a permanent or a temporary basis. For a request to fall under the statutory regime it must:
- Be made in writing;
- Be dated;
- Expressly state it is being made under the statutory procedure;
- Specify the change applied for and the date they propose such change to take effect;
- Explain what effect, if any, the employee thinks the change would have on the employer and how, in their opinion, it might be dealt with; and
- State whether the employee has made such a request before and, if so, when this was.
Employees can only make one request under the statutory procedure in any twelve month period. Employers, whilst entitled to refuse to consider any request if an employee has already made one in a twelve month period, should still consider it although will not be bound by the procedure they must follow under the statute set out below.
Employers receiving such a request must notify the employee of their decision within three months of the date the request is received. This decision period may be extended by agreement between employee and employer and as always it is best practice for any agreement to be made in writing.
Employers must deal with the application in a reasonable manner. ACAS (through the Statutory Code of Practice, Handling Requests to Work Flexibly in a Reasonable Manner which tribunals must consider) suggests employers should arrange a meeting (to take place in private and as soon as possible after receiving the request) to talk to the employee about the changes they are looking for and how the business might benefit from these. Before the meeting, the employer should inform the employee that they are able to be accompanied at this meeting, and at any appeal, by a work colleague.
Employers should then:
- Consider the request carefully, weighing the benefits against any adverse impact on the business;
- Inform the employee in writing of its decision as soon as possible after making it;
- If the request is approved the employer should discuss how and when the changes should be implemented;
- If the request is refused employers should allow the employee a right to appeal the decision; and
- Any appeal must be considered within the same 3 month decision period unless extended by agreement.
There are 8 grounds upon which an employer may refuse to grant the application:
- The burden of additional costs;
- Detrimental effect on 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 periods the employee proposes to work; or
- Planned structural changes.
Claims
Employees may present a claim to an employment tribunal that:
- Their employer failed to deal with the application in a reasonable manner;
- Their employer failed to notify them of their decision within the decision period;
- Their employer rejected the application for a reason other than those listed above;
- Their employer based their decision on incorrect facts; or
- Their employer wrongly treated the application as withdrawn.
If an employment tribunal finds a claim to be well-founded it must make a declaration to that effect and:
- Order the employer to reconsider the application; and
- Make an award of compensation not exceeding 8 weeks' pay.
Employment tribunals in such claims are limited to only reviewing the procedure followed by the employer, whether the request was taken seriously, whether the decision was based on correct facts, and whether the reason for refusal fell within the grounds of refusal above. The decision is largely subjective and the tribunal will not look into the fairness or explanation given by the employer.
Although employment tribunals would not look at the fairness or reasonableness of any refusal, a tribunal is entitled to investigate the evidence to see if it was based on correct facts. Given many thousands of employees will now have a period of home-working to point to and in many cases factual evidence to support their application or counter some of the grounds of refusal, employers may face a higher threshold in order to refuse an application.
For example, where historically an employer may simply have been able to come to the subjective conclusion that they considered home-working would have a detrimental impact on performance, in a post-coronavirus world employees may now have empirical evidence to say with confidence that it would not. Likewise, employers may have difficulty relying on the ground of additional cost if they have already incurred any set-up costs associated with home-working in the past months.
Most importantly, employers must carry out a proper investigation based on proper evidence.
Constructive Dismissal and discrimination
Whilst the remedies available for a claim under the flexible working provisions may be seen to lack teeth due to the relatively low limit on compensation, there is a real risk of other claims arising as a result of a refusal.
Employers unable to justify their refusal, or inconsistently considering requests may face claims for constructive dismissal and/or discrimination depending on the facts.
When considering any requests, employers should therefore be mindful of their obligations under the Equality Act 2010.
For example, employees with disabilities may have discovered home-working to be beneficial to their condition and now consider this a reasonable adjustment the employer should make on their return.
Employers should approach home-working and other flexible working requests with a positive mind-set. The legislation requires employers to consider the potential benefits to the business and they would be well advised to do so given technological advances and the benefits to staff moral and cultivating an efficient culture amongst its employees. Now is a time for employers to evaluate their workforce and look for areas where efficiencies can be gained and what benefits can be gained from these exceptional circumstances.
Our specialist employment law team provide expert advice to both employers and employees on a full range of employment matters. For more information contact us on 01603 693500 or email us using the 'Make an enquiry' form on our website.
*This article is accurate at the time of writing (27 April 2020). This article is provided for general information purposes only and does not constitute legal advice or other professional advice.
