Flexible Working

THOROGOOD PROFESSIONAL INSIGHTS

A SPECIALLY COMMISSIONED REPORT

FLEXIBLE WORKING LATEST BEST PRACTICE FOR EMPLOYERS AND EMPLOYEES

Audrey Williams

IFC

THOROGOOD PROFESSIONAL INSIGHTS

A SPECIALLY COMMISSIONED REPORT

FLEXIBLE WORKING LATEST BEST PRACTICE FOR EMPLOYERS AND EMPLOYEES

Audrey Williams, Eversheds

Published in 2005

Other Thorogood Professional Insights

Thorogood Publishing Ltd 10-12 Rivington Street London EC2A 3DU. t: 020 7749 4748 f: 020 7729 6110

Applying the Employment Act 2002 – Crucial Developments for Employers and Employees

e: [email protected]

Audrey Williams

© Audrey Williams 2005

w: www.thorogood.ws

All rights reserved. No part

A Practical Guide to Knowledge Management Sue Brelade and Christopher Harman

of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, photocopying, recording or

Reviewing and Changing Contracts of Employment

otherwise, without the prior

Annelise Tracy Phillips

This Report is sold subject to the

permission of the publisher.

condition that it shall not, by way of trade or otherwise, be lent,

Email – Legal Issues

re-sold, hired out or otherwise

Susan Singleton

circulated without the publisher’s prior consent in any form of binding or cover other than in

Employee Sickness and Fitness for Work Gillian Howard

Successfully Defending Employment Tribunal Cases Dennis Hunt

which it is published and without a similar condition including this condition being imposed upon the subsequent purchaser. No responsibility for loss occasioned to any person acting or refraining from action as a result of any material in this publication can be accepted by the author or publisher.

Special discounts for bulk quantities of Thorogood books are available to corporations, institutions, associations and other organisations. For more information contact Thorogood by telephone on 020 7749 4748, by fax on 020 7729 6110, or email us: [email protected]

A CIP catalogue record for this Report is available from the British Library. ISBN 1 85418 306 0 Printed in Great Britain by printflow.com

About the author Audrey Williams qualified as a Solicitor in 1989 and is now a Partner in the Employment Law Team at Eversheds. She is a Member of the Chartered Institute of Personnel and Development. She has particular expertise in Discrimination, Harassment, Equal Pay and Disability Discrimination. Whilst the majority of her work is conducted on behalf of employers, she has represented employees in a number of key discrimination cases, including one of the first transsexual discrimination cases. Audrey also undertakes cases for the Equal Opportunities Commission in Wales. Audrey has particular experience of undertaking advocacy in large and complex tribunal cases on unfair dismissal and discrimination – the longest running to 13 days! Frequently undertaking reviews of equal opportunities, maternity, harassment, discipline, grievance and counselling policies, Audrey has assisted Clients in providing training to establish these policies within the workplace. She has written a number of books on aspects of employment law including Croner’s Guide to Contracts of Employment (which she co-authored). She is a regular contributor to the Law at Work column in the IPD’s People Management magazine, CCH’s Management Newsletter and Croner’s Discrimination and Pay & Benefits Briefings. Audrey’s latest publication with Jordans is Harassment At Work, written in conjunction with two Eversheds colleagues. She is a member of the Employment Lawyers Association, Discrimination Law Association and the Institute of Directors, and is a listed expert in both ‘Chambers & Partners’ and the ‘Legal 500’.

THOROGOOD PROFESSIONAL INSIGHTS

Contents

1

INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS 1 Suite of Rights ..............................................................................................2 Why was it Implemented? ..........................................................................3 Demographic Changes ...............................................................................5 The Business Case .......................................................................................6 The European Perspective ..........................................................................8 Moving Forward..........................................................................................9

2

STATUTORY FLEXIBLE WORKING RIGHTS

11

Who is Eligible? .........................................................................................12 Parents/Carers of Children.......................................................................13 What can be Requested? ..........................................................................14 Form of Request.........................................................................................14 Incomplete Applications/Outstanding Information...............................15 The Procedural Obligations......................................................................16 Incomplete Applications ...........................................................................16 Meeting and Response..............................................................................17 Right to be Accompanied .........................................................................17 Unavailability of Companion....................................................................18 The Companion’s Rights ...........................................................................18 Unavailability of the Employer.................................................................18 The Meeting................................................................................................19 Responding to the Request.......................................................................19 Right to Appeal ..........................................................................................20 Failure to Attend ........................................................................................20 Extending the Timetable – Generally.......................................................21 Grounds for Refusal ..................................................................................22 Complaints and Remedies ........................................................................23

THOROGOOD PROFESSIONAL INSIGHTS

CONTENTS

3

PRACTICAL ISSUES AND COMMON CONCERNS 24 Refusing a Request ....................................................................................25 Granting a Request/Any Conditions .......................................................25 Proposing an Alternative ..........................................................................26 Anticipatory Requests for Flexible Working ..........................................27 Consequential Changes to the Contract: Salary and Benefits..............27 Protection from Detriment and Dismissal ..............................................28 Particular Flexible Working Patterns ......................................................30 What Types of Flexible Working can be Requested? ............................30 Annualised Hours ......................................................................................31 Home Working...........................................................................................31 IDS Study on Home Working...................................................................32 Part-time/Job Share/Compressed Hours – Rest Breaks........................34 Term Time Working...................................................................................34 Further Information ..................................................................................36

4

OTHER FLEXIBLE WORKING RIGHTS

37

Cases ...........................................................................................................38 Other Rights – Sex Discrimination ..........................................................40 Why a Discrimination Claim? ..................................................................43 Sex Discrimination Remedies...................................................................43 Other Forms of Discrimination................................................................45 Disability Discrimination ..........................................................................46 Age Discrimination....................................................................................49

5

BEST PRACTICE – KEY RECOMMENDATIONS

51

Reviewing Existing Policies and Procedures and Introducing New Work Patterns ............................................................................................52 Attitudes and Behaviour ...........................................................................53 The Policy Itself ..........................................................................................54

THOROGOOD PROFESSIONAL INSIGHTS

CONTENTS

6

FUTURE CHANGES

57

Just a Family Thing?..................................................................................59 Conclusion ..................................................................................................60

APPENDICES

61

Appendix A Flexible Working Application Form........................................................62 Appendix B Summary Flowchart of Process ...............................................................65

THOROGOOD PROFESSIONAL INSIGHTS

THOROGOOD PROFESSIONAL INSIGHTS

Chapter 1 Introduction – Background to Flexible Working Rights Suite of Rights........................................................................................2 Why was it Implemented? ....................................................................3 Demographic Changes .........................................................................5 The Business Case .................................................................................6 The European Perspective ....................................................................8 Moving Forward....................................................................................9

Chapter 1 Introduction – Background to Flexible Working Rights In April 2003 employees in the UK were first given the right to request flexible working. In the modern work environment, the introduction of these new rights served to illustrate that traditional working patterns could no longer be sustained by employers and that there was a need to address the work/life balance. Organisations – already facing skills shortages – would find recruitment and indeed retention made harder if a more flexible approach to working patterns was not adopted.

Suite of Rights The flexible working rights which were introduced were significant in themselves, however, they formed part of a new set of rights which sought to create a more ‘family friendly’ work environment. Until April 2003, individual parental rights were primarily limited to maternity leave for a new mother giving her the right to time off, the right for parents to take emergency time off for dependants (not just limited to children) and to take up to 13 weeks’ parental leave, which had been introduced in December 1999. In April 2003, however, the following new rights were introduced: •

The right to maternity leave was extended considerably so that, for the first time, all employees (regardless of their length of service) were entitled to 26 weeks’ maternity leave and those with more than a year’s service acquired the right to 52 weeks’ maternity leave.

•

Fathers also gained rights, albeit limited to 2 weeks’ paternity leave, on the birth of their child.

•

Unprecedented new rights were given to those seeking to adopt, with statutory adoption leave and statutory paternity leave, giving rights reflecting maternity and paternity leave, for adopting parents.

It is significant (and perhaps indicates the extent to which this Government is keen to support working parents) that the next item on the flexible working

THOROGOOD PROFESSIONAL INSIGHTS

2

1 INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS

agenda, announced in 2004, is the possibility of allowing flexible maternity leave between parents; instead of only a mother having the right to take up to 52 weeks’ maternity leave (based on the stereotype of a new mum remaining at home), there is the prospect of some limited swapping of the right to maternity absence as between the mother and father of the child. The indications are that if it is introduced at all, this flexible right to maternity leave is unlikely to come into existence until 2006. Before these revolutionary new rights in 2003, the ability of any employee to work flexibly or indeed part-time, was very much limited to circumstances where an employer agreed through good will or good practice to such an arrangement. Critics of the flexible working rights argue that the new provisions have not moved this position forward because all they provide is a right to request and to have that request considered seriously. Before they existed, however, there were only two circumstances where flexible working patterns of any sort could be enforced: •

Firstly, where an individual was a disabled employee and could demonstrate that some form of adjustment to their working hours or duties and working arrangements amounted to a reasonable adjustment which their employer was obliged to make in accordance with the Disability Discrimination Act 1995;

•

Secondly, and only as a way of challenging a refusal, female employees could argue that in respect of part-time working, a refusal to agree to part-time work was contrary to the Sex Discrimination Act 1975. This is on the basis that it can be shown that a practice within an organisation prohibiting part-time working (or indeed a practice allowing only full-time working) operates to the greater disadvantage of women than men and thus falls within the concept of indirect sex discrimination. (This is a concept which we will examine in more detail in Chapter 4.)

Why was it Implemented? The history that reflects the flexible working laws introduced in 2003 goes back a number of years. In June 2001, the Government of the time established a Task Force whose role it was to consider specifically the issues which working parents face; in particular the Task Force was to consider how to assist parents in meeting their desire for flexible working patterns, whilst at the same time remaining compatible with the need for business efficiency and requirements.

THOROGOOD PROFESSIONAL INSIGHTS

3

1 INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS

The establishment of the Task Force was against the background of a voluntary campaign and Government funding to encourage employers and businesses to address work/life balance issues. In March 2000, the Prime Minister launched a campaign known as the Work/Life Balance Campaign with a view to persuading organisations to improve the lot of working parents in such a way as to nevertheless continue achieving business and customer requirements. The original campaign was not in fact focussed upon parents, but looked at all employees regardless of whether they had caring responsibilities or not. It was significant, however, in recognising that the attitude, culture and philosophy of workers had moved on considerably from the ambitious society of the 1980s and 1990s. According to information from the Department of Trade and Industry, the Work/Life Balance Campaign was accompanied by a challenge fund which, in the run up to the introduction of statutory requirements and legal obligations, encouraged employers to introduce and develop innovative working arrangements. By helping to fund consultancy support, projects were undertaken with work/life balance in mind, including the introduction of new working patterns as well as specific recruitment projects. Over the three years from 2000 to 2003, the Work/Life Balance Challenge fund benefited employers to the sum of £10.5 million. In its report on 19 November 2001, the Government Task Force made nine recommendations to the Government, many of which were translated to form the basis of the new legislation. In addition to the campaign and the recommendations of the Task Force, the Government had also informed itself of the views of the working population, through the issue of a green paper: Work and Parents: Competitiveness and Choice. This consultation paper was issued in December 2000. The responses to the consultation paper made clear that whilst improving maternity and indeed paternity rights (such as parental leave) would be of benefit to working parents, by far the most popular and indeed significant benefit was improved flexibility to meet childcare and work responsibilities. Armed with these responses and the Task Force report About Flexible Working, the Government tabled parts of the Employment Act 2002 which resulted in implementation of significant new flexible working rights, implemented through an amendment to the Employment Rights Act 1996 and two sets of regulations.

THOROGOOD PROFESSIONAL INSIGHTS

4

1 INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS

Demographic Changes There is no denying that the twenty first century work environment is very different to previous, traditional working patterns. Many employees work longer hours and there are more one parent families. In 1972, single parent families accounted for 7% of all families, compared to a staggering 23% in 2003 (Social Trends 34, General Household Survey, Census, Labour Force Survey, Office for National Statistics) and in many more households, both parents work. But it is not just parents who face issues. Demographic changes have played a significant part in impressing the need for organisations to develop more varied and non traditional working patterns: •

With the ageing population, many more people are finding that they have caring responsibilities such as looking after elderly or disabled relatives. By 2010, 40% of the UK population will be over 45 – the age at which disability increases (Labour Force Survey 2001).

•

As we are all living longer, more individuals are becoming disabled, according to the Employers’ Forum on Disability.

•

With the move away from extended families and as people become more mobile, so they are not living close to relatives and parents, those with children are less able to rely on grandparents or other relatives to help with child care responsibilities.

•

Over the past 20 years from 1984 to 2004, the percentage of women over the age of 16 who have taken up employment has increased from 43% in 1984 to 54% (Labour Force Survey 1984-2004, Office for National Statistics.)

•

The trend for life expectancy, although different for men and women, has increased by roughly five years from age 76 in 1981 for women and 70 for men, to 80 and 75 respectively by 2001 (Office for National Statistics, Government Actuaries Department).

These trends are likely to continue as, particularly in the case of carer responsibilities, predictions are of a significant increase. According to a general household survey in 1988, around 1.7 million carers provided care to others in excess of 20 hours per week. The prediction is that by 2037 an extra 3.5 million carers will be needed; this is because it is also anticipated that there will be 3 million more people in the UK over the age of 75 at the time (It Could Be You: A Report on the Chances of Becoming a Carer, Carers UK, 2001). It is perhaps for this reason that a new term has been adopted by bodies such as the Equal Opportunities Commission, to describe the current generation as the ‘sandwich generation’, taking responsibility for both an elderly person as

THOROGOOD PROFESSIONAL INSIGHTS

5

1 INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS

well as dependant children. The Equal Opportunities Commission (EOC) itself has collated information from bodies such as the 2001 Census, ONS and the Joseph Rowntree Foundation, which tells us that amongst this sandwich generation, 26% of carers also have dependant children, whilst only a quarter of families rely on grandparents to provide childcare each week, and a quarter of our families are headed by a lone parent (see www.eoc.org.uk/parentsandcarers EOC March 2004 report). The Commission goes on to state: “Britain’s birth rate is falling; people are having fewer children and having them at a later age. At the same time, life expectancy is increasing so there are more elderly people needing care. Yet, as families become smaller and more dispersed and as employment rates rise, the pool of people to provide unpaid care is shrinking”. This summarises the situation succinctly and, as demonstrated by the 2001 Census, there are now more over 60s in the UK than under 16s. Any organisation which thinks that this is about simply the traditional role of women changing within the workplace, needs to think again. Perhaps surprisingly, the EOC statistics also tell us that 42% of all carers of older and disabled people, are men.

The Business Case So much for the demographic changes, but there are also business benefits for organisations which offer new or more flexible working arrangements, particularly given the accepted skills shortage in the UK and the fact that there are less young people in the market looking for work and more older people who themselves are keen to work but may prefer or indeed require more flexibility. Again, the 2001 Labour Force Survey tells us that by 2006, 45-59 year olds will form the largest group in the UK’s labour force. Employers may be surprised to know that for some individuals the ability to work flexibly is more important than the pay or benefits that a particular job may provide. In an online poll carried out by Reed Recruitment in conjunction with the Department of Trade and Industry as part of its Work/Life Balance Campaign 2002, a third of those polled (out of 4,000 people) expressed a preference for having the opportunity to work flexibly, rather than having a £1,000 pay rise (Reed.co.uk). Over 43% of the men who responded to the poll selected flexible working as the benefit they would most look for in a new job, compared to 13% who would look for a company car, and 7% who considered gym membership to be the priority.

THOROGOOD PROFESSIONAL INSIGHTS

6

1 INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS

Adopting family friendly and flexible working policies has the following advantages for employers: •

Retention of staff is key to the stability and knowledge of the organisation. Knowledge is lost when somebody leaves and networks are broken. This can be critical in a small business where major customers can go elsewhere when an employee, who understands their needs and whom they trust, moves on to a competitor.

•

The typical recruitment costs of replacing an individual have been estimated at an average £3,500, ranging from £1,000 for an unskilled manual worker to over £5,000 for a professional employee. These costs do not take account of the investment made in training (both formal and informal training) which is lost if skilled employees leave the workplace, as well as lost time and experience. Consequently, it makes commercial sense to try and retain staff rather than recruit new staff [Labour Turnover, Chartered Institute of Personnel and Development, October 2000].

•

Savings in absenteeism. Absenteeism costs approximately £500 per employee a year. A quarter of employers rank home and family responsibilities as one of the five main causes of sickness absence.

•

Employers that help their employees to balance their work with their family lives see improvements in business performance. [Cheibl, L. and Dex.S, Would More ‘Family Friendly’ Working Arrangements Benefit Businesses and Families?, ESRC working paper, No 106, September 1998]. It enables businesses to benefit from a greater contribution from the workforce and maximises the contributions that working parents are able to make to their employers.

A strong track record in work/life balance can be a selling point to potential employees who consider that such a balance is important. Many employers sees benefits from flexible working and leave arrangements including: •

improved employee satisfaction and motivation

•

improved retention rates and recruitment benefits

•

increased employee productivity

•

reduced labour turnover

•

improved reputation

•

reduced absenteeism.

All of which provide improved business results.

THOROGOOD PROFESSIONAL INSIGHTS

7

1 INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS

The European Perspective In a global economy, but particularly one where it is not uncommon for businesses to move operations into Europe, it is also significant that the UK is lagging behind many of its European neighbours in the way it provides flexible working. In 2004, the first anniversary of the flexible working legislation, Eversheds conducted a survey of a number of European countries and compared their flexible working provisions with that of the UK. The study found that Germany, Holland, Italy and Spain were among those countries that provide all employees with a legal right to request more flexible working arrangements rather than, as in the UK, limiting it to a small proportion of parents with children (only those under six or with disabled children). Whilst it was not all bad news, other countries such as Denmark and Germany did provide more limited rights, this is important bearing in mind that the availability of employees for work may persuade a particular business to locate, or indeed relocate, to a jurisdiction outside the UK. European demographics are reflective of the UK statistics, with the same issues surrounding elderly parents: the EU population over 80 (being the group that needs most care) could, it is estimated, reach 25 million by 2020 – a huge increase when one considers that the over 80 population was 15 million in 1997 (Eurostat). Across the water in the United States, the position is no different. In 1993, AT&T conducted its own survey to mark the National Day of the Working Parent; although that survey was limited to its own employees, the results showed that one third of those responding said that they had sacrificed their careers for the sake of their personal lives – which suggests that the pattern is repeated in other organisations and that not always the best person is progressing through an organisation and developing their careers and being promoted. 70% of those surveyed expected their work or family issues and challenges to increase over the next five years. That analysis can only have moved on in the last decade. A more recent study conducted in February 2004 by Mellon Research (Mellon Financial Corporations Human Resources and Investor Solutions Study Work/Life – A Delicate Balance) looked at the practices of 600 organisations within the United States of America. It also compared the results with a similar survey carried out in 1996. Significantly the statistics demonstrate that many more businesses than previously are offering family related benefits such as family sick days (54% up from 42%), unpaid family leave beyond the legal entitlement, in the US (47%). Around 50% of responding organisations had increased the number of work/life programmes offered to employees in the last two years with 71% offering flexi-time (from 32% in 1996), 50% telecommuting and

THOROGOOD PROFESSIONAL INSIGHTS

8

1 INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS

homeworking (compared to 9% previously), 44% compressed work weeks (up from 16%) and 85% who have part-time employees (compared to 50% in 1996). (See www.hrmguide.com/ worklife for more details.)

Moving Forward Having introduced the new rights for parents in 2003, recently the DTI conducted a survey and analysis of how successful the new rights have been within the UK (Employment Relations Occasional Papers: Results of the First Flexible Working Employee Survey, Tom Palmer, Department of Trade and Industry). The outcome of that report demonstrated that one million parents had made requests for flexible working. That is only a quarter of those who are eligible, meaning that three million who could have made such a request have not done so. Perhaps significantly, it seems that employers when faced with such requests, do not have any major difficulty acceding them. 80% of those employees requesting flexible working had their request agreed. The shortfall of those pursuing their new rights and the three million who have not, may be explained by the survey’s statistics which demonstrate that 52% of parents who are eligible are unaware in the first place that they have the right to request flexible working. The Government has declared an intention to extend these new rights beyond parents with children under six (the plans for which will be discussed in more detail in Chapter 6). However, the success and significance of new rights such as these can only be measured when individuals become fully aware of their abilities. The fact that 10% of employees without dependent children were reported in the DTI survey to have requested flexible working, suggests that there is a need on the part of individuals without children to gain this benefit. In organisations where requests were made, notwithstanding that individuals did not always have the statutory right, the reasons for the change warrant examination: •

13% quoted work life balance

•

11% cited family responsibilities

•

11% simply because they wanted more free time (i.e. voluntary and not driven by childcare or family pressures)

•

7% because of travel arrangements

•

7% to meet the caring needs of relatives or friends

•

6% due to health problems.

THOROGOOD PROFESSIONAL INSIGHTS

9

1 INTRODUCTION – BACKGROUND TO FLEXIBLE WORKING RIGHTS

As these statistics demonstrate therefore, an organisation’s ability to offer flexible working arrangements provides a significant benefit to an extremely wide pool of actual or potential employees. This may, however, just be the tip of the iceberg. What the survey does not analyse is how many individuals simply do not pursue a request. In the Equal Opportunity Commission’s Annual Report for 2003-2004 (available at www.eoc.org.uk) four in ten mothers, one in ten fathers and one in five carers have left an organisation or refused a job because of caring responsibilities. This suggests that there are many who do not have confidence in their organisation’s willingness to accommodate them.

THOROGOOD PROFESSIONAL INSIGHTS

10

THOROGOOD PROFESSIONAL INSIGHTS

Chapter 2 Statutory Flexible Working Rights Who is Eligible? ...................................................................................12 Parents/Carers of Children.................................................................13 What can be Requested? ....................................................................14 Form of Request ..................................................................................14 Incomplete Applications/Outstanding Information ........................15 The Procedural Obligations................................................................16 Incomplete Applications .....................................................................16 Meeting and Response........................................................................17 Right to be Accompanied ...................................................................17 Unavailability of Companion..............................................................18 The Companion’s Rights.....................................................................18 Unavailability of the Employer...........................................................18 The Meeting .........................................................................................19 Responding to the Request.................................................................19 Right to Appeal ....................................................................................20 Failure to Attend..................................................................................20 Extending the Timetable – Generally ................................................21 Grounds for Refusal ............................................................................22 Complaints and Remedies ..................................................................23

Chapter 2 Statutory Flexible Working Rights In this Chapter we will examine the existing UK right to flexible working, provided through the Employment Act 2002 but actually contained within Part VIII A Sections 80F to 80I of the Employment Rights Act 1996. It is important to realise that flexible working so far as the statutory rights are concerned, is quite different to what may be available on a voluntary basis and through an organisation’s flexible working arrangements. The Employment Rights Act 1996 (ERA) gives very limited rights to work flexibly and focuses only on the hours and place of work. In truth, in an organisation which welcomes flexibility and wishes to adopt a flexible working approach, there might well be a preparedness to agree to other types of flexible working such as job sharing, sabbaticals, career breaks and the like. We will examine the types and forms of flexible working in a later Chapter. By law, the right to flexible working is limited to enable any employee to make a request and have it considered seriously. Moreover, only those who have the requisite employment with their employer and are parents with children of a particular age gain this statutory right in the first place.

Who is Eligible? Before an employee can by law make a request to work flexibly (pursuant to the Employment Rights Act 1996) and have that request seriously considered, he/she must satisfy the following conditions: •

Have at least 26 weeks’ continuous employment at the date upon which they make their application.

•

Have a child under the age of 6 or a disabled child under the age of 18 – a disabled child is defined as a child in respect of whom a disability living allowance has been granted.

•

Have not made a previous application to work flexibly during the 12 month period from the date of the application.

THOROGOOD PROFESSIONAL INSIGHTS

12

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

The statutory provisions also state that the flexible working application must be made for the purpose of caring for a child, in reality it is difficult to pursue and explore in detail with an individual the reason for their flexible working request. Although the provisions operate from the age of the child and therefore, in calculating whether their age of 6 or 18 one considers the child’s date of birth, an application itself must be made before the 14th day before the child reaches the age of 6 or 18. These pre conditions, which are established through the 1996 Act are supplemented by the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (SI 2002/3236) (‘The Eligibility Regulations’) and Flexible Working (Procedural Requirements), Regulations 2002 (SI 2002/3207) the ‘Procedural Requirements’.

Parents/Carers of Children For the most part the provisions are fairly clear. However, the scope of the provisions do explicitly state that only parents of eligible children i.e. those under 6 (non disabled) or 18 (disabled) can make the request and the purpose must be in order to care for the child. This begs the question precisely who counts as a parent under these provisions and therefore to whom is the right to request flexible working granted. The Eligibility Regulations make clear that any individual in one of the following types of relationship in respect of the child gains the statutory right: •

Mother, father, adopter, guardian or foster parent (referred to below for convenience as the primary parent).

•

A person who is married to, or the partner of, the child’s mother, father, adopter, guardian or foster parent.

•

An individual who has or expects to have responsibility for the upbringing of the child.

A guardian for these purposes means a statutorily appointed guardian recognised under Section 5 of the Children Act 1989 or Section 7 or 11 of the Children (Scotland) Act 1995. Similarly, an adopter must be someone who has been matched for adoption formally and a foster parent means someone who is fostering within the Fostering Services Regulations 2002 or the Fostering of Children (Scotland) Regulations 1996.

THOROGOOD PROFESSIONAL INSIGHTS

13

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

The partner of someone who is the child’s mother, father, adopter, guardian or foster parent has also been defined. Partner obviously is intended to extend to a person who is not married to the primary parent. It does include a person of a different or the same sex of the primary parent (same sex couples). That person must live with the child and the mother, father, adopter, guardian or foster parent in what is described as an enduring family relationship. The significance of the definition of partner is that he/she must be a person who is in that form of parental relationship and not simply a relative because relatives are excluded. The Eligibility Regulations make clear that someone who is the parent, grandparent, sister, brother, aunt or uncle (unless they are a legal guardian for example) of the primary parent, cannot be eligible because they cannot be regarded as the primary parent’s partner, albeit they might be living with the child and in an enduring family relationship. For completeness, parent, grandparent, sister, brother, aunt or uncle refers to both full and half blood relationships and adoptive relationships.

What can be Requested? The statutory request for flexible working, which must be in writing and must be dated (Regulation 4), can request a variation to the individual’s contract in one of the following ways: •

a change to the hours of work;

•

a change to the time when the work is required (for example, the same eight hour day but an early start and early finish);

•

a change to the place of work as between home and place of business.

The statutory provisions do not go beyond these fairly focused and limited flexible arrangements. Nothing within any of the provisions appear to prevent the employee seeking a change to more than one of the above, for example to reduce hours and work from home.

Form of Request As has already been explained, a request under the 1996 Act must be in writing and must be dated. The written request also has to go on and specifically identify whether a previous application has been made by the individual; if a previous application has been made, it must identify when it was made – this is because

THOROGOOD PROFESSIONAL INSIGHTS

14

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

of the limit that is placed to prevent employees making more than one request in any 12 month period. The application must also identify what change is being asked for, and the date upon which the employee wishes the change to become effective. Not only that, but it is incumbent upon the individual to explain what effect, if any, he/she thinks the change in their own working arrangement will have on the employer and how any effect (particularly if adverse) might be dealt with. Finally, the written request must specify the individual’s relationship with the child. As with many of the new statutory provisions introduced in the last ten years, it is perfectly acceptable for a written application to count as ‘in writing’ if it is by email or fax. Through guidance which has been issued by the Department of Trade and Industry (Flexible Working: The Right to Request and the Duty to Consider), a specific form is available to be used – although this form is not mandatory. It is enough for an individual to write a letter to their employer outlining the above information in order for a legitimate request to have been made. In some organisations, a policy may be in place which also contains a specific form. However, great care must be taken where such a policy or form does exist; simply because the individual does not make their request using that form, does not mean that the request is not legally valid and it must be processed by the employer. Provided the written request satisfies the above conditions, an employer will be acting unlawfully if it does not process that request. The DTI form – which is available from their website – appears at Appendix A of this Report.

Incomplete Applications /Outstanding Information We will examine below the strict timescales which the statutory provisions impose and a strict process which employers must follow in order to deal with an application for flexible working. The legal obligation on the employer is to seriously consider the request, respond and ensure that the appropriate procedure (in terms of meetings and ensuring the right to be accompanied) is followed.

THOROGOOD PROFESSIONAL INSIGHTS

15

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

The Procedural Obligations The first step in that timescale, having received a request for flexible working, is for the employer to convene a meeting 28 days after (i.e. excluding) the date the application is received. The detailed procedure and timescales which must be followed are contained in the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207). This raises two questions: •

When is an application received?

•

What if the application is not valid or there is some information missing?

Date of the Application The Eligibility Regulations make clear that the date of an application (from which the 28 days should be counted for the first meeting) is that from when the application is taken to have been made. Regulation 5 of the eligibility provisions make clear that the application is taken to have been made on the date it is received (which of course may be different from the date upon which it was written by the individual). It is important therefore that employers date stamp or identify clearly when a request for flexible working is received within the particular department or by a manager. Where the application has been made electronically (by email or fax), special rules apply and the date it is received is taken to be the date on which it is transmitted, i.e. sent, even though there may be technical problems meaning that, in practice, the application may not have not have arrived the same day. If posted, the application is to be treated as if delivered in the ordinary course of the post, i.e. the next day if sent by first class and two days later if sent by second class post.

Incomplete Applications None of these timescales, however, are triggered where the application does not provide all of the information which the individual is under an obligation to provide (see above Form of Request). However, in such a situation, the employer is not permitted to simply “sit on his hands” and ignore the request. The employer should write to the individual to explain that their application is incomplete, to clarify the information which is needed and to explain that there is no obligation on the part of the organisation to consider the application until the information is submitted and the request is complete.

THOROGOOD PROFESSIONAL INSIGHTS

16

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

Meeting and Response The Procedural Regulations require an employer to follow a specific timetable and ensure a request is responded to, ultimately in writing. Although there are timescales around these provisions, it is possible for the employer and individual to agree to extend any of the timescales (see further below). If agreement is reached about changing the 28 day or 14 day time limits which apply, then this must be recorded in writing making clear what the period of extension relates to, the new date which has been agreed and a written record must be sent to the employee. The first obligation on the part of the employer is to convene a meeting with the individual to discuss the application. This must be done within 28 days after the date the application is received. The purpose of this meeting of course, is to discuss the individual’s request and explore the impact which the flexible working may have. It should also be the opportunity for the employer to outline and address any concerns.

Right to be Accompanied As with all formal meetings which take place between an employer and employee, there is a right to be accompanied given to the employee at such a meeting. The statutory provisions refer to the individual having the right to be accompanied by a companion, and the Procedural Regulations make clear it is by a single companion only. The companion must be a worker employed by the same employer and the role of that companion is specifically outlined. He or she may address the meeting and confer with the employee – importantly, the companion is not entitled to answer questions on behalf of the requesting employee (Regulation 14(2)). Alongside this right, the companion also has a right to reasonable paid time off to undertake the companion role (see further below). Where the employer has infringed the right to be accompanied, whilst the companion can complain if they have been denied the time off or pay, the individual employee can also complain when denied the right to be accompanied. That complaint must go to an employment tribunal (within three months from the employer’s failure) and a tribunal can award an amount of up to two weeks’ pay (subject to the week’s pay maximum). The remedy for denying the employee his right to be accompanied is two weeks’ pay (actual or £270 (£280 after 01/02/05 whichever is the lower).

THOROGOOD PROFESSIONAL INSIGHTS

17

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

Unavailability of Companion An employer will, of course, have his eye on the 28 day timescale but it may be that the individual’s chosen companion is unavailable for a meeting within that period. An individual who is notified of a date for the meeting by his employer and who then discovers that his chosen companion is not available, can propose an alternative convenient date, provided that that alternative date falls within seven days from (and including) the original date proposed by the employer.

The Companion’s Rights The companion, as has already been stated, must be permitted to address the meeting and to confer with the requesting employee. There is a corresponding right on the part of the companion to be permitted to take time off during working hours in order to accompany the employee. This is not necessarily limited to simply the time in attendance at the meeting, the entitlement is to take reasonable time off for that purpose. It is important to note that the companion should receive his normal pay for the time taken off and that the statutory provisions protect an individual from suffering any detrimental treatment or dismissal because they have acted in the role of a companion.

Unavailability of the Employer There is another circumstance in which the 28 day timescale can be varied and the initial meeting delayed. The Procedural Regulations make clear that if an application is sent to a manager, and that manager would normally be responsible for dealing with it but is on holiday or sick leave, an automatic extension occurs. In these circumstances, the 28 day timescale within which the meeting must take place, commences on the day of the manager’s return but cannot go beyond 56 days from the date of the application (Regulation 13 unhelpfully refers to the meeting having to take place within 28 days from the manager’s return or the 28 day meeting deadline starting to run 28 days after the date of the application, whichever is the sooner). Particular care needs to be taken however to ensure the absence falls squarely within the statutory exception: the automatic extension provisions here only occur where the manager is absent on holiday or sick leave. Simply because an individual manager may be absent on business does not trigger the automatic extension provisions and, in such situations, agreement must be reached with the individual.

THOROGOOD PROFESSIONAL INSIGHTS

18

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

The Meeting At the meeting itself, a number of issues and outcomes may result. It may be that the request can be readily agreed to and in fact, where an employer can accept the request there is no obligation to convene the meeting, provided confirmation of acceptance is given in writing to the employee within the 28 days instead. It may be that concerns or alternative patterns and proposals are discussed, in which case further investigation or considerations may be required; the employer for example, may wish to explore the implications of the change in working arrangements with other members of management or within the team. In such circumstances, the employer should heed carefully the obligation to notify the employee in writing of his decision within 14 days after the meeting. An extension to this timescale may be required and if so (as previously explained) a new date must be agreed and confirmed in writing.

Responding to the Request Another time limit is imposed by the Procedural Regulations, which require that the individual is informed in writing by the employer of the outcome of their request within 14 days after the date of the meeting. The written detail that must be provided containing the decision varies dependent upon the response:

Agreement Where the employer agrees to the variation to the hours or place of work, the written notice must identify precisely what contractual variation is agreed and the start date it is to take effect.

Refusal Where the response is to refuse the request, the employer must identify on what specified grounds the refusal has been made (the provisions only allow a lawful refusal to take place on specific grounds explained below), and must go on to explain why the refusal has been provided, as well as providing the right to appeal. In this circumstance, the written notice must itself be dated because further time limits apply.

THOROGOOD PROFESSIONAL INSIGHTS

19

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

Alternative Proposal It may be that the employer’s response is to suggest an alternative work pattern. For example, where an employee asks for reduced hours to work five hours per day instead of their normal eight, an employer may decide that he/she can only agree to a reduction to six hours. Such a response must still be in writing and because it effectively amounts to a refusal (of the original request): •

must specify the lawful ground for refusal that applies; and

•

should also outline that the individual has the right to appeal against this decision.

Right to Appeal The Procedural Regulations make clear that an employee must be offered the right to appeal. If he/she wishes to pursue that appeal, it must be made within 14 days after the date on which the employer’s decision is given. That notice of appeal must be in writing and set out the grounds of appeal. Where an appeal is lodged, a meeting must take place within 14 days after the employee’s notice and, as before, the outcome of the appeal and employer’s decision must be provided in writing within 14 days after the meeting. If the employer’s decision is to uphold the appeal and effectively agree to the original working pattern requested, the appeal can be dealt with on paper. The meeting does not have to take place provided, within 14 days of the date of the appeal itself, written confirmation is given to the individual effectively agreeing to the contractual change and identifying the date from which it is to take effect. As with the earlier time limits in respect of the appeal process, it is possible for time to be extended by agreement.

Failure to Attend There may be occasions when an individual does not attend the initial meeting or indeed the appeal meeting. In such circumstances, although not explicit in the provisions, the implications are that the obligation is on the employer to reconvene the meeting provided the employee had reasonable cause for not attending. If the employee does not attend because he no longer wishes to pursue his application to vary, the individual should be asked to confirm his withdrawal in writing.

THOROGOOD PROFESSIONAL INSIGHTS

20

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

Regulation 17 states that if an employee fails without reasonable cause to attend a first stage meeting or an appeal meeting on more than one occasion, then the employer is entitled to treat the application as withdrawn. For this reason, a second attempt must be made to convene the meeting. The employer must, however, confirm the withdrawal of the application to the employee in writing. The significance of this is that the individual will not be entitled to pursue a further application within 12 months. In the same way, an employee may have submitted an incomplete application and whilst in such a situation the employer can ignore the request, it is better for the employer to follow through to ask for the missing information. This is because Regulation 17(1)(c) makes clear that if an employee unreasonably refuses to provide the obligatory information then the application can be treated as having been withdrawn. Unless an incomplete application can be treated as withdrawn in this way, there is nothing to prevent the individual from pursuing a further request within the 12 months’ timeframe. This is because the original (incomplete) request cannot otherwise be treated as a statutory request.

Extending the Timetable – Generally By way of a general provision, the Procedural Regulations do allow an employer, by agreement with the employee to extend the timescales for the following: •

convening the first meeting (normally 28 days);

•

responding with the decision (14 days after the meeting);

•

the employees appeal notice (14 days after the decision);

•

convening the appeal meeting (14 days after the employee’s notice of appeal);

•

notifying the appeal decision (14 days after the appeal meeting);

•

the time limit to respond which applies when the relevant manager is absent.

In order for the agreed extension of time to be valid the agreement must be confirmed in writing and must also identify what timescale is being extended, the alternative date and be dated and sent to the employee (Regulation 12 Procedural Regulations).

THOROGOOD PROFESSIONAL INSIGHTS

21

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

Grounds for Refusal One of the criticisms of the new flexible working provisions is that they do not provide a right on the part of an employee to work flexibly but provide only a right to request. This is because there is no obligation on the part of the employer to grant a request for flexible working. An employer’s response must comply with the procedural steps and a refusal will only be lawful if it is for one of the specified reasons. The specified statutory reasons, which will be lawful for refusing a request for flexible working, are one (or taken together a combination) of the following: •

the burden of additional costs,

•

detrimental effect on ability to meet customer demands,

•

inability to reorganise 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,

•

planned structural changes.

Thus, where an employer either refuses altogether the flexible working which the individual seeks or refuses the particular pattern and offers an alternative, it must be made clear that that refusal is for one of the above stated reasons. The employer must go further however and in the written notice confirming the decision, the employer must explain why he/she considers this ground applies. Employers should therefore not just identify the particular ground but explain in sufficient practical detail, for example, what additional costs will be faced, how customer demands will be affected and/or why the organisation cannot recruit additional staff.

THOROGOOD PROFESSIONAL INSIGHTS

22

2 S TAT U T O RY F L E X I B L E W O R K I N G R I G H T S

Complaints and Remedies Aside from the rights which protect an individual from being penalised or indeed dismissed for making a flexible working application with which we will deal later (or in the case of a companion accompanying an individual), there are only two grounds upon which a legal complaint can be made under the flexible working provisions: either because the procedure has not been followed (the requisite meetings have not taken place, the timescales have not been met, decisions have not been given in writing) or the refusal has not been on one of the lawful legitimate grounds. In such circumstances, an individual can complain to an employment tribunal. Importantly, where the complaint is about the employer’s refusal, the individual cannot simply challenge the employer’s decision because he does not agree with it but must, to succeed, be able to demonstrate that the employer has based the decision on incorrect facts. The limited right to challenge in this way has been severely criticised. It has been suggested also, that these statutory provisions are ‘without teeth’. Moreover, an individual having been notified in writing of the employer’s decision who considers that it is based on incorrect facts, has an obligation to pursue the matter internally at an appeal before taking it further to an employment tribunal. A complaint brought solely under the statutory right to work flexibly is of limited benefit (it may be that some other type of complaint can also be pursued such as a constructive dismissal or sex discrimination which we will examine later). This is because at best, an employment tribunal cannot question the employer’s business grounds and cannot substitute its decision for that of the employer. If the tribunal is satisfied that the decision and rejection was on incorrect grounds, it can only order that the employer reconsider the application (or in the case of a procedural defect) follow the procedure correctly, with the result that the matter is placed back into the employer’s hands. The financial remedy is also limited to such amount as is just and equitable, with a maximum of eight weeks’ pay; eight weeks’ pay currently is an actual figure i.e. the employee’s actual weeks’ earnings or £270 (moving to £280 on 1 February 2005) whichever is lower. Few employers would worry unduly about facing a financial penalty of £2240 at its highest!

THOROGOOD PROFESSIONAL INSIGHTS

23

THOROGOOD PROFESSIONAL INSIGHTS

Chapter 3 Practical Issues and Common Concerns Refusing a Request ..............................................................................25 Granting a Request/Any Conditions .................................................25 Proposing an Alternative....................................................................26 Anticipatory Requests for Flexible Working....................................27 Consequential Changes to the Contract: Salary and Benefits........27 Protection from Detriment and Dismissal ........................................28 Particular Flexible Working Patterns ................................................30 What Types of Flexible Working can be Requested? ......................30 Annualised Hours................................................................................31 Home Working.....................................................................................31 IDS Study on Home Working.............................................................32 Part-time/Job Share/Compressed Hours – Rest Breaks..................34 Term Time Working.............................................................................34 Further Information ............................................................................36

Chapter 3 Practical Issues and Common Concerns

Refusing a Request The legal position is that when a request is pursued through the statutory process and a decision given, an individual must be given the right to appeal. At the end of the process however, a decision to reject the employee’s request has the effect of preventing them from exploring alternative working patterns for at least 12 months. Under the Eligibility Regulations, once an individual has made a statutory request for flexible working, they are not eligible to make a further request within 12 months. Whilst that is the strict legal position, it may not be in the employer’s interests, particularly where a valued and demotivated employee is having genuine difficulty with undertaking their work or duties. For these reasons an organisation may wish to allow some flexibility and be prepared to consider further variations or another request. Failure to do so may simply result in the employee leaving the organisation with the requisite loss of skills and experience. Thus it may be that an organisation will prefer to be more accommodating rather than take a stringent approach and apply the strict, statutory rules.

Granting a Request/Any Conditions Although it is not explicitly stated anywhere in the statutory provisions, what Section 80F of the Employment Rights Act 1996 makes clear is that the effect of granting a flexible working request is to effect a change to the employee’s terms and conditions of employment. This means that a contractual arrangement binds both employer and employee to work the varied hours or from the varied place of work once the request is agreed. There is nothing within the provisions which places any timescale or limit around the period during which that change has effect and certainly no provision that would enable that change to be for a limited period. This means that once granted, the new working pattern becomes a perma-

THOROGOOD PROFESSIONAL INSIGHTS

25

3 PRACTICAL ISSUES AND COMMON CONCERNS

nent feature of the employment contract and if an individual wishes to revert to the previous work pattern, that must be pursued through a further statutory request for a change to their contract. Perhaps more importantly, a secondary question arises as to whether the employer can specifically agree to the new working pattern for a limited trial period (to test and see how it works) or for a limited period of say two years. Nowhere in the statutory provisions is there a power to agree a trial period. Although the DTI Guidelines appear to envisage trial periods being agreed, the strict legal position is that a conditional agreement (either to grant the new working pattern for an initial six month trial period or for a limited period of a year or two) could be construed by the individual as tantamount to a refusal or, in any event, at the end of the trial period or at the end of the one year or two, certainly there would then be a refusal if the individual wished to continue the work pattern. Due to the way in which the provisions are crafted, as has already been explored, any refusal can only be lawful if it is for one of the specified reasons. But because there is a risk that an individual may complain, any employer who is considering granting the request with conditions, must ensure that the reasons the conditions are in place fall within one of the business grounds for refusal (burden of additional cost, detrimental effect etc).

Proposing an Alternative There are circumstances in which the particular hours that the employee wishes to work for example, may not be suited to the employer’s circumstances but nevertheless the employer does feel able to agree an alternative work pattern. Great care should be taken in these situations because although an alternative is being put forward (and indeed may be agreed with the employee) the particular pattern which the employee requested has as a fact been refused. This means that again, the business grounds for refusing must be examined to ensure that one or more of the legitimate reasons apply and that is explained to the individual. More importantly perhaps, an employer should also ensure that he or she has an explanation for why the counter proposal or the alternative pattern put forward did not meet with the same objections, so as not to undermine the refusal of the employee’s preferred pattern.

THOROGOOD PROFESSIONAL INSIGHTS

26

3 PRACTICAL ISSUES AND COMMON CONCERNS

Anticipatory Requests for Flexible Working Although it is unlikely that the provisions were ever intended to operate in this way, there is in theory nothing to prevent an individual requesting a change to flexible working prior to their child’s sixth birthday. The application could be submitted early explaining that they wish the new working pattern to operate at some point in the future (even though the child may be above the age of six by the date it is intended they start so working). That is the logical approach to the fact that the change which can be requested, once agreed, is permanent. The provisions contain no caveat that can allow or indeed require the individual to revert to the previous working pattern once the child passes their sixth birthday (or indeed in the case of a disabled child they reach the age of 18). Requests of this nature must be progressed in the usual way following the usual procedure.

Consequential Changes to the Contract: Salary and Benefits If the requested change involves a reduction in working time then it may well also involve other changes, particularly to the employee’s benefits package and salary or wages. A number of potential repercussions can occur and an employer must be careful to demonstrate that it does not infringe other legal and employment rights which the individual has. Again there is nothing within the section (either the Employment Rights Act itself or the two sets of Regulations) which appears to recognise that the change which the employee seeks may also result in other consequential changes which the employer may require. In practice however, there is nothing to prevent the parties to the contract from agreeing other changes in addition to the change in work pattern. Because the granting of the change would be expressed to be conditional upon other variations and could therefore be construed as a refusal, it is important that an employer demonstrates why (usually from a financial perspective) changes to the other terms of the contract of employment are appropriate. It is also important that disproportionate changes or reductions are not effected (or indeed, a disproportionate increase). This is not in actual fact because of the flexible working rights themselves but because of other protection which exist: in particular those contained within regulations which protect part-time workers. The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 as can be seen, predate the flexible working provisions, however, the substance of these Regulations make clear that a part-time worker should not

THOROGOOD PROFESSIONAL INSIGHTS

27

3 PRACTICAL ISSUES AND COMMON CONCERNS

be treated less favourably because of their part-time status or hours, when compared to a full-time worker carrying out the same or broadly similar work. In the case of adjustments to benefits and salaries for example, the pro rata principle applies (unless inappropriate) (see Regulation 5(iii) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000). An employer should have regard to these regulations and, if possible, pro rata salary in particular. Overtime may be a particular issue because it has been argued in the past that it is unfair that a part-time worker does not receive any overtime premium or additional overtime rate when they work over and above their part-time hours. In many organisations, the overtime rate does not apply until after the individual reaches and exceeds the normal full-time equivalent. Regulation 5(iv) of the Part-Time Workers (Prevention of Less Favourable Treatment ) Regulations 2000), explicitly states that it is not less favourable treatment to refuse to pay overtime or overtime rates to a part-timer until after they have exceeded the number of hours of their comparable full-time worker. The treatment of benefits may need some careful consideration also. The greatest danger would be to exclude a part-timer, or an individual working reduced hours, from benefits altogether and if possible, a pro rata approach should again be taken. The risk is not just of a less favourable treatment complaint under the Part-Time Regulations but that an individual working either part-time or an adjusted or a non traditional working pattern, may pursue a complaint of indirect sex discrimination if that person can show that a greater proportion of women (or men) tend to work that non traditional pattern, and that excluding them from certain benefits or providing them with lesser benefits, has a disproportionate effect by disadvantaging one gender over another. We will examine indirect discrimination in more detail in Chapter 4. It is possible to defend a position where less than a pro rata approach is taken against an indirect discrimination complaint, by demonstrating that the approach taken is justified i.e. necessary and appropriate.

Protection from Detriment and Dismissal Other than the pro rata salary and other appropriate changes, care must also be taken to ensure that no individual is subjected to a detriment or indeed dismissed because they have made a request for flexible working. Dismissal is perhaps obvious but it can include a constructive dismissal i.e. forcing an

THOROGOOD PROFESSIONAL INSIGHTS

28

3 PRACTICAL ISSUES AND COMMON CONCERNS

individual out of the organisation by the employer’s reaction or conduct which amounts to a breach of the contract of employment. Dismissal also includes the termination of a fixed term contract. For example, if an organisation employs an individual permanently, that individual then makes a flexible working request and is offered a fixed term employment contract as a result, that could lead to a claim of detrimental treatment. Where, however, the request comes from an individual already working on a fixed term contract as an employee, and although granted the decision is taken that their fixed term contract will be brought to an end (when ordinarily it might well have been renewed had they been working the ‘norm’) the non-renewal of that fixed term contract – linked as it is to their application for flexible working – would amount to an automatic unfair dismissal. It is also possible to argue detrimental treatment or dismissal occurred because the employer was aware the employee intends to make a request for flexible working. As is the case with many other employment rights, it would be unlawful to dismiss or treat someone detrimentally because they had stated an intention or have actually lodged tribunal proceedings. Detrimental treatment is perhaps more difficult. Detriment can take the form of positive behaviour or a failure on the part of the employer; for example, excluding someone from a promotion opportunity because they are working flexibly or have made a flexible working application. It could also include denying individuals training opportunities and other facilities, so that great care must be taken in ensuring that individuals are in no way penalised because of their flexible working request or new work pattern and that they are also not excluded from opportunities or denied anything. Cases of dismissal and detriment can be brought to an employment tribunal, but unlike a claim for refusal which has a maximum of eight weeks’ pay as the remedy, the remedy for detrimental treatment is such as is just and equitable on the part of the employment tribunal. The usual remedies for unfair dismissal also apply, subject to the statutory maximum of £55,000 moving from the 1st February 2004 to £56,800. In cases of dismissal linked to flexible working entitlement, once the individual establishes the link between their dismissal and their request or flexible working pattern, that dismissal would be automatically unfair, which means that the employer cannot defend a dismissal for any fair reason. To enhance the protection, an individual can pursue a complaint under these provisions without having to establish the usual qualifying period of employment (of one year) or meeting any age limit (being below the organisation’s normal retirement age), rules which normally apply as preconditions to unfair dismissal

THOROGOOD PROFESSIONAL INSIGHTS

29

3 PRACTICAL ISSUES AND COMMON CONCERNS

claims. On another note of caution, it would be automatically unfair, for example, to select an individual for redundancy due to their flexible working request.

Particular Flexible Working Patterns As has already been alluded to, the variation of working patterns are many. By far the most popular (again based on the DTI Employment Relations Occasional Paper: Results of the First Flexible Working Employee Survey already referred to in Chapter 1) is part-time working. In the analysis of flexible working undertaken by the employees surveyed, by far the most common type of flexible working request made was part-time working – 38% of all employees (31% male, 41% female). Flexi time, however, was also quite common (25%) followed by reduced hours (13%), working from home (10%) and compressed work (8%). Some of these forms of working hours do carry particular, somewhat unique, issues.

What Types of Flexible Working can be Requested? The statutory provisions on flexible working are quite specific in terms of what changes an individual can seek. They are limited to changing the number of hours of work, the time during which individuals work or the place of work – as between home and or ‘place of business of his employer’. This can actually cover quite a number of changes. In terms of the hours or times of work, a number of different working patterns, many of which are examined in more detail in the DTI Guide,are included: •

Part-time working, which could include some form of job sharing.

•

Compressed hours, where the individual works the same number of hours over a shorter period of time, perhaps expanding their working day but working less days in the week.

•

Flexi time or flexi working, an individual may wish to start work earlier in the morning in order for them to leave work early or,alternatively, may prefer a late start and late finish. Some organisations for example, operate what is often termed twilight working or twilight shift working.

THOROGOOD PROFESSIONAL INSIGHTS

30

3 PRACTICAL ISSUES AND COMMON CONCERNS

These are more typical types of flexible working patterns. However, it is worth exploring some other, less common non traditional work arrangements.

Annualised Hours A few years ago, annualised hours contracts were quite popular and it appeared that they were likely to become of more common use. However, there has perhaps not been the trend towards annualised hours that might have been anticipated. Annualised hours work well in businesses where there are fluctuating levels of activity or production. An annualised hours contract operates in such a way that the individual agrees to work a set number of hours through the course of the year but precisely when they work those hours varies week by week, to match the high and low levels of activity within the business. Invariably pay would also vary according to the actual hours worked.

Home Working The provisions also envisage that an individual can specify a different place of work or some change to or from home working. An individual can specifically ask that they be permitted to work from home for all of their employment, but of course it may be that they will seek to work for part of their working time from home. The statutory provisions, however, do envisage that the employee can ask for a change relating to where they work and that can include a place of business for their employer. Thus, a legitimate statutory request for flexible working could involve an employee requesting that instead of working from one of the employer’s locations, perhaps where they currently work, their base of work is moved to an alternative location of the business. As a particular change that can be requested under the statutory provisions, great care needs to be taken with home working, whether that is for the whole of the employee’s work or just part of it. Whilst there are distinct advantages to home working, including reduced overheads in terms of office accommodation, productivity and retaining individuals, other issues need to be addressed. Perhaps most importantly, health and safety obligations have to be considered and steps taken to ensure that, even when at home, the individual has a safe working environment where information is secure (particularly computer information) and that the appropriate work station assessments are undertaken (see for example, the Health and Safety at Work Act etc 1974 and Management of

THOROGOOD PROFESSIONAL INSIGHTS

31

3 PRACTICAL ISSUES AND COMMON CONCERNS

Health and Safety at Work Regulations 1999/3242). As a general principle, under the health and safety legislation, the employer is responsible for ensuring the safety and suitability of equipment including electrical equipment and maintaining a safe working environment and reporting work related accidents – even though this may all take place within the home. Other practical and financial issues would need to be considered such as: •

The cost of telephone lines (for telephone and computer usage). How are these to be accounted for and reimbursed?

•

The provision of off-site technical assistance to deal with issues such as computer failures.

•

How supplies are to be replenished if the individual uses paper, postage, fax equipment and again, if they are buying this on behalf of the business, how it is to be monitored, accounted for and reimbursed.

In some circumstances the Inland Revenue may allow tax deductions to be claimed by the employee for expenses such as telephone calls and lighting (Sections 336 and 337 Income Tax (Employment and Pensions) Act 2003). Clear guidelines and practices should be identified and agreed (in writing) for accounting and record keeping on such matters. On a practical level and in terms of management, how is the business going to deal with supervision, management, training, illness reporting, holidays and undertaking appraisals and review of objectives?

IDS Study on Home Working In an IDS study on teleworking dated May 2002, useful guidance was given as to the approach that should be taken by employers in introducing teleworking as part of the working arrangements of the organisation. For the purpose of the study, a teleworker is an employee who works some or all of their time at home and is provided with appropriate computer/telecommunications equipment by their employer to enable them to do so. A teleworker is often referred to as a ‘home worker’, ‘home-based worker’, ‘location independent worker’ and ‘telecommuter.’ The study indicated that home working is only likely to be introduced when an employer perceives that it will suit the needs of the organisation, enabling the business to evolve in such a way that it becomes more effective or more compet-

THOROGOOD PROFESSIONAL INSIGHTS

32

3 PRACTICAL ISSUES AND COMMON CONCERNS

itive. However, in most cases, the arrangement is to the mutual benefit of both employer and employee. The IDS study examined home working at Abbey National where it was thought that home working would be a good motivational tool and would consequently improve productivity in the workforce. In another organisation, Fleetway Travel, the business case for home working was seen as particularly strong; the idea that more staff could be brought in to enhance sales – without the need for increased office space – held great appeal. All the organisations that the IDS study had spoken to had introduced pilot home working schemes before formalising the arrangement. At the Inland Revenue, pilot schemes were initiated in different areas of the organisation, giving management the opportunity to assess how applicable home working was for different jobs. At Abbey National, a trial period of usually six months is recommended whether home working is being introduced for a new group of staff or for a single individual. Details about the trial period, such as the actual length of the trial and what happens when it concludes, would be clearly set out beforehand. The IDS study set out some basic points of good practice which employers should follow to help avert the potential problems of home working. These are listed below: •

The arrangement could be piloted first to test its suitability and individuals could initially homework on a trial basis.

•

It may help to have an eligibility criteria, including qualities such as self-motivation and the ability to work without close supervision, in order to determine who can homework.

•

Setting clear objectives which help to encourage structured working, while ensuring that outputs remain easily measurable.

•

Effective communication channels, including a schedule for regular meetings and visits to the office, can be established at the outset, so that the homeworker continues to feel part of the organisation and in touch with developments.

THOROGOOD PROFESSIONAL INSIGHTS

33

3 PRACTICAL ISSUES AND COMMON CONCERNS

Part-time/Job Share/Compressed Hours – Rest Breaks In respect of part-time arrangements, most organisations will be familiar with the issues to be addressed. However, organisations must still ensure that parttime or compressed working patterns comply with obligations under the Working Time Regulations 1998 (SI 1998/1833). In particular, in the case of compressed hours or annualised hours, by law, individuals must be allowed the opportunity to take a 20 minute rest break once they have worked in excess of six hours (Regulation 12 (3)). Where the part-time pattern that has been agreed is one that amounts to shared full-time hours between two or more members of staff (i.e. job sharing), the contract needs to address the question of holiday allocation, handover of work and what occurs if one job share partner actually leaves the organisation/changes jobs.

Term Time Working This is another form of flexible working. It can be more difficult to accommodate, but in some organisations individuals are permitted to work certain times in the year whilst children are at school, but do not work during the school holidays. A request for term time working would fall within the statutory rights to request because it is a variation to the times during which the individual is required to work. The individual’s terms and conditions of employment will be the same as those of any full-time employee, save for the fact that they may be absent from work on an unpaid basis for a fixed number of weeks each year during school holidays. A term time worker will be entitled to employment protection in the same way as full-time employees, including the right to sue for unfair dismissal after one year’s continuous employment. Term time employees are of course entitled to all their statutory rights regardless of the amount of hours worked by them, even if these hours may be nil during any particular week. In addition, continuity of employment will be preserved throughout their employment, even during periods of unpaid leave taken during school holidays, because their contract of employment will continue in force during that time. As work is carried out only during school term times, annual salary is pro rated down to allow for the extra time taken off. Employees may either be paid only

THOROGOOD PROFESSIONAL INSIGHTS

34

3 PRACTICAL ISSUES AND COMMON CONCERNS

on the weeks they actually work, which means that they will receive no income during some weeks of the year. Alternatively, their reduced annual salary can be averaged out and paid each week throughout the year, despite the fact that they will be working only intermittently during that year. If so, there is a risk that if employees leave the organisation part way through the year, they may end up being paid too much overall if they have taken more leave than that which has been covered by their averaged out salary. Organisations must reserve the right to make a deduction from the employee’s final salary in respect of any overpayment that may have been made to them. As the main intention of term time working is to help parents cover school holidays, most schemes stipulate that the majority of that person’s standard annual leave should also be taken within the school holidays. For example, an employer could state that 80% of contractual annual leave must be taken during school holidays, thereby leaving 20% of the individual’s standard annual leave entitlement for term time emergencies and so forth. Under the Working Time Regulations 1998 employers are entitled to require employees to take their statutory annual leave at a certain time or times of the year, provided adequate notice is given. Therefore, employers are fully entitled to ask employees to take the majority of their annual leave at specified times, for example, during school holidays under the Regulations. A careful review of the provisions contained in the Working Time Regulations 1998 is recommended to any employer considering agreeing a term time contract, to ensure compliance with what are technical notice provisions. Applications for term time working should be organised in such a way as to enable the employer to have sufficient time to cover any period of absence. In addition, employees must be responsible for supplying information about term dates as early as possible. In assessing an application for term time working, an employer must examine peaks and troughs in workload, the working arrangements of other staff in the applicable section and the size of that section. In the event that an application for term time working is rejected, staff should be given the right to appeal and, as in all cases, the employer must ensure the reason(s) for refusal fall within the legitimate statutory grounds.

THOROGOOD PROFESSIONAL INSIGHTS

35

3 PRACTICAL ISSUES AND COMMON CONCERNS

Further Information Underpinning the statutory provisions is detailed guidance which has been provided by the Department of Trade and Industry. This contains not just an outline of the statutory provisions, but detailed examples and case studies, a summary flow chart of the process and many common questions and answers. The guidance is available at www.dti.gov.uk/workingparents as well as some sample forms which individuals and employers are encouraged to use, at www.dti.gov.uk/er/individual/flexforms.htm.

THOROGOOD PROFESSIONAL INSIGHTS

36

THOROGOOD PROFESSIONAL INSIGHTS

Chapter 4 Other Flexible Working Rights Cases .....................................................................................................38 Other Rights – Sex Discrimination ....................................................40 Why a Discrimination Claim? ............................................................43 Sex Discrimination Remedies.............................................................43 Other Forms of Discrimination..........................................................45 Disability Discrimination ....................................................................46 Age Discrimination .............................................................................49

Chapter 4 Other Flexible Working Rights We have already examined the remedies which exist under the statutory flexible working rights contained within the legislation. Claims under the flexible working statutory rights in the last 18 months have been extremely rare. Indeed, most of the challenges and claims which have been brought at the current time based on flexible working requests, focus on sex discrimination rights rather than the flexible working provisions themselves. In this Chapter we will also consider how and why claims of sex discrimination are pursued, often as a preferable alternative to relying upon the statutory remedies.

Cases One of the few cases that has been reported in fact involved a claim under the flexible working provisions as well as a claim of indirect sex discrimination: McPollard v Viking Pumps (Humberside) Limited (Case No: 1804054/02). This was a decision of the Employment Tribunal sitting in Hull. Mrs McPollard worked 35 hours per week for a small company with only five staff. Her role was as an administrative assistant dealing with the telephone, post and pricing. Having taken maternity leave, Mrs McPollard made a request to work part-time and when it was refused, brought a tribunal complaint. The tribunal accepted the evidence of Viking Pumps that they had a legitimate reason for refusing to grant Mrs McPollard’s request; this was a small firm and the business case for the refusal fell within two of the permitted exceptions: the disruption and difficulties in recruiting. The tribunal accepted that: •

from a cost perspective, the business would have difficulty recruiting at Mrs McPollard’s hourly rate in order to find someone to job share with her;

•

in the absence of the manager, Mrs McPollard was the only person answering the telephone and would not be there if she worked parttime hours only;

•

the business would have difficulties recruiting a member of staff, who would suit, to share the hours alongside Mrs McPollard – given that she herself was looking for hours to fit around her husband’s shifts.

THOROGOOD PROFESSIONAL INSIGHTS

38

4 OTHER FLEXIBLE WORKING RIGHTS

A more unusual case which actually dealt with the right to time off for parental leave, has provided some guidance on the scope of the non detriment provisions. Rodway v South Central Trains (Appeal No: UKEAT/0099/04/DA) actually concerned a request by Mr Rodway for one day off work, as his parental leave, to look after his son. When he was refused that leave he did not turn up for work and was then issued with a warning for non attendance. Mr Rodway complained that he had been subjected to a detriment for relying upon his parental leave entitlement – in the same way as an individual would be able to pursue a complaint if they suffer any detriment for pursuing their right to flexible working. Whilst the Employment Tribunal agreed, at appeal the Employment Appeal Tribunal did not consider that Mr Rodway had a valid complaint. It was a fact that Mr Rodway was not entitled to take one day’s parental leave because the statutory right to parental leave requires that it be taken as a minimum of a week’s leave (to a maximum of 13 weeks). Thus Mr Rodway was not making a legitimate request to take parental leave and he could not therefore complain that his employer’s disagreement and dispute about his entitlement amounted to a detriment. In addition, the Appeal Tribunal considered that the issue of the disciplinary warning was perfectly lawful, did not infringe Mr Rodway’s right to parental leave and thus could not amount to detrimental treatment. One can see that this case would apply, by analogy, if there is a situation where an individual is claiming or making a request for flexible working for which they are not eligible and then perhaps seeks to pursue a complaint of detrimental treatment when they are told that the request cannot be progressed, or are perhaps disruptive as a consequence. The case appears to be suggesting that an employee cannot complain of a detriment for seeking to rely upon his/her statutory right to flexible working where that employee does not have that right in the first place. Having said this, caution is advised. As an alternative argument an individual can complain, under different provisions contained in the ERA, where they have suffered dismissal for seeking to rely upon or assert a statutory right under that Act (see Section 104 ERA). The section goes on to make clear that an individual can complain about such a dismissal even if the right which they asserted did not in fact apply to them: 104(2) “It is immaterial for the purposes of [this provision]: a)

whether or not the employee has the right, or

b)

whether or not the right has been infringed.”

THOROGOOD PROFESSIONAL INSIGHTS

39

4 OTHER FLEXIBLE WORKING RIGHTS

Other Rights – Sex Discrimination As has already been mentioned, an individual has very limited recourse if they are unhappy with an employer’s refusal to grant flexible working. It is possible, and indeed more common, for some employees to pursue rights under other legislation, in particular, the Sex Discrimination Act 1975 (SDA). Indeed, what may happen is that a claim is pursued under both the flexible working provisions and under the sex discrimination legislation, and both claims can be heard together. In such circumstances, as well as demonstrating a legitimate refusal (as the reason for rejecting flexible working) the employer would also have to satisfy the tribunal that the refusal was justified (in accordance with the legal definition in the SDA). The Sex Discrimination Act renders unlawful direct and indirect sex discrimination, on the grounds of a person’s gender. Unless an individual is refused flexible working because he is a man or a woman, and can demonstrate that ‘but for’ their sex the flexible working request would have been granted, it is unlikely that a direct sex discrimination claim could be pursued. However, there has been a claim brought against an employer by a male employee who was refused parttime working when other female employees around him were allowed to work part-time. In Walkingshaw v The John Martin Group (Case number S/401126/ OO) Mr Walkingshaw as a senior technician working for the John Martin Group, had decided that he wished to undertake part-time work in preference to his wife, in order to take more responsibility for their son. His request to the area manager was refused because it was, according to the manager, too complicated. His suggestion that he job share was also rejected. After resigning, Mr Walkingshaw took action complaining that the refusal had been discriminatory and pointed to the fact that although there were no female senior technicians in the Group, part-time working by other female employees in other departments, had always been agreed. The Employment Tribunal agreed with Mr Walkingshaw’s complaint, that had he been female, his request would have been considered more carefully and it was likely that it would have been granted. The view was that Mr Walkingshaw had indeed been refused part- time working because he was a man. More likely, is a claim of indirect sex discrimination. Indirect sex discrimination under the Sex Discrimination Act 1975 works in the following way: •

If it can be shown that an employer adopts a provision, criterion or practice (for example, that it will not allow part-time working and therefore the practice is to have full-time workers only or it will not allow any flexibility).

THOROGOOD PROFESSIONAL INSIGHTS

40

4 OTHER FLEXIBLE WORKING RIGHTS

•

The individual might well be able to demonstrate that that provision, criterion or practice is one with which a considerably smaller proportion of say females can comply when compared to males. This is known as disproportionate impact. It is a rule which applies to all but which disadvantages more women than men.

•

Provided that the individual can demonstrate that ‘disproportionate impact’ has the effect of disadvantaging more women than men, the individual will be able to show that the refusal is to their detriment.

The employer’s refusal will be unlawful unless it can be shown that full-time hours or non flexible working is justified. Justification in law, for these purposes, means that the employer must demonstrate that the working requirement or fixed hours, fulfil a real need on the part of the employer and is appropriate (for that purpose) as well as being necessary. The cases have demonstrated that an employer is expected to balance the discriminatory effect on the employee against the business needs. In addition, a certain amount of flexibility is expected. The more strict the employer is, the greater must be the employer’s need. One of the leading cases which examined indirect sex discrimination is London Underground Limited v Edwards (No:2) [1998] IRLR 364. London Underground in that case, introduced new shift patterns amongst their train operatives. The breakdown of male to female operatives was 2023 male, 21 female, of which Ms Edwards was one. She had particular difficulties, as a single parent, moving to the new shift pattern. The new shift system involved more flexible shifts over a seven day period and whilst Ms Edwards could work 0800 to 1600 hrs or 0830 to 1630 hrs during the week, she had difficulty working the new pattern. She complained that the imposition of the new shift pattern amounted to indirect sex discrimination, namely a new practice which disadvantaged more women than men. Although she was one of the 21 female train operatives who could not comply, all of the male train operatives agreed to the new pattern. The Court of Appeal took the view that one in 21 was enough (95%) to show that a considerably smaller proportion of female train operators could comply than male (100%). One of the concerns in the case when the matter went back to the Employment Appeal Tribunal, was the employer’s justification. The EAT took the view that it was difficult for an employer to justify the strict adherence of the rule without a willingness to allow for just one exception, which would have been the case with Ms Edwards (see [1998] IRLR 364).

THOROGOOD PROFESSIONAL INSIGHTS

41

4 OTHER FLEXIBLE WORKING RIGHTS

Generally speaking, employment tribunals and courts will apply their own experience and knowledge about the labour market and family issues to reach a conclusion on whether a particular pattern or work approach is likely to adversely impact upon women. Having said this, detailed statistics are readily available to support arguments around women taking more responsibility for childcare and having difficulties working full-time. More recently, the Court of Appeal has made clear that the particular circumstances and profession should be carefully considered before applying generalist knowledge to make assumptions about parents, carer responsibilities and work/life balance. In the case of Sinclair Roche and Temperley v Heards &Ors [2004] IRLR 703, the Court of Appeal specifically stated that they did not consider in the case of a ‘high flying’ City lawyer, it could be said that full-time working imposed a criterion which was likely to exclude more women than men. “The tribunal was not entitled to conclude that because women have a greater responsibility for child care, a considerably larger proportion of women than men are unable to commit themselves to full-time working, if this was intended to be a relevant finding with regards to men and women solicitors or men and women working in high-powered and highly-paid jobs in the City…” The scope of protection given by the indirect sex discrimination provisions is well illustrated by an employment tribunal decision known as Robinson v Oddbins Limited (case number 4224/95). Mrs Robinson was a branch manager of Oddbins whose contract (not unusually) stated that the standard working week would be 39 hours but she could also be required to carry out such other hours as might be necessary for her duties. She had, in fact, in practice often worked 50 hours or more in any week. On her return from maternity leave however, Mrs Robinson explained that because of childcare arrangements, she needed to have some certainty and know in advance what her hours would be and would be unable to comply with as much flexibility. She was told that as a branch manager this would not be possible because the responsibilities were such that more flexibility was required. No real assessment was given to whether the job could be job shared. The Employment Tribunal (with whom the Employment Appeal Tribunal agreed) formed the conclusion that the contractual position requiring, “such hours as may be necessary” indirectly discriminated against Mrs Robinson in that it was likely more women than men would be unable to satisfy that obligation. With expert evidence from an organisation called New Ways to Work, the Tribunal rejected the employer’s explanation for why greater flexibility was needed in the case of branch managers.

THOROGOOD PROFESSIONAL INSIGHTS

42

4 OTHER FLEXIBLE WORKING RIGHTS

Why a Discrimination Claim? There are a number of reasons why individuals, if they are able to, would seek to pursue such refusals as discrimination claims in preference (or in addition) to relying upon the flexible working provisions. The first reason is because the Employment Tribunal’s powers are much greater in a successful discrimination case than a flexible working challenge. The range of orders and remedies are considered in more detail below. The second reason is due to the fact that there are many more individuals who can pursue claims and have rights under the discrimination legislation: •

non-employees, in particular candidates/job applicants have the right not to be discriminated against unlawfully (flexible working rights attach only to employees);

•

an individual does not need to have any qualifying employment (26 weeks employment is needed to be eligible to request flexible working);

•

if a person has an older child (over 6/18 in the case of a disabled child)or no child, they could still seek flexible working and may be able to complain that any refusal was because of unlawful discrimination (sex, race, disability, sexual orientation or religion).

Sex Discrimination Remedies The key advantage to individual claimants in pursuing a case of sex discrimination, over and above a flexible working complaint, is in the remedies if they succeed. Albeit that an indirect claim is unlikely to be available to a male employee, if a claimant is successful the tribunal can order the following: •

a declaration;

•

compensation for any financial loss;

•

injury to feelings;

•

a recommendation.

Compensation for the individual’s loss can include their lost salary, for example, if they have to resign because they are not granted the new working pattern. This would include loss of salary, benefits and pension loss until such time as it is anticipated they will (or actually do) achieve an equivalent position (at the part-time hours, for example). Ongoing future loss would also be assessed and is at the discretion of the tribunal. Unlike an unfair dismissal claim, a sex discrim-

THOROGOOD PROFESSIONAL INSIGHTS

43

4 OTHER FLEXIBLE WORKING RIGHTS

ination award is not subject to any statutory maximum which limits the amount which a tribunal can award. The injury to feelings element is at the tribunal’s discretion but current guidelines from the case of Vento v Chief Constable of West Yorkshire [2003] IRLR 702 indicates that the range for injury to feelings is as follows. Three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury, can be identified: 1.

The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as when there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race. Only in the most exceptional cases should an award of compensation for injury to feelings exceed £25,000.

2.

The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

3.

Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

Perhaps most important of all is the power to make a recommendation. The power to issue a recommendation is given to an employment tribunal in order to alleviate or obviate the effect that the discrimination has had upon the individual. As we have seen, in a claim under the flexible working provisions, it is not permissible for a tribunal to substitute its decision for that of the employer or to require the employer to order/grant the flexible working pattern. In the case of a successful sex discrimination complaint, however, a tribunal can recommend that the employer grants to the employee or allows them to work the flexible working or part-time pattern. If the employer flouts that recommendation (which is a Court order) it is open to the individual employee to go back to the tribunal to seek a further financial remedy for the failure to comply.

THOROGOOD PROFESSIONAL INSIGHTS

44

4 OTHER FLEXIBLE WORKING RIGHTS

Other Forms of Discrimination So far we have been proceeding on the basis of flexible working being sought due to family responsibilities. There are, however, other situations in which flexible working or adjustments to hours or the place of work may be seen as an advantage to an individual employee and where, if refused, an individual may be able to pursue a legal remedy. In December of 2003 new rights were granted to individuals making it unlawful for employers to discriminate on grounds of religion or belief (Employment Equality (Religion or Belief) Regulations 2003 (SI 2003-1660)). These Religious Regulations contain the same concept of indirect and indeed direct religious discrimination. Religion or belief for these purposes means any religion, religious belief or similar philosophical belief; guidelines build upon this definition to include a profound belief affecting the way of life or view of the world which involves some form of collective worship system [see the ACAS Code – Religion or Belief in the workplace – A Guide for Employers and Employees]. Thus, for the purposes of religious discrimination, it is unlawful direct discrimination for A (the employer) to treat B (the employee) less favourably on the grounds of B’s religion. In addition, indirect discrimination occurs if A applies to B a provision, criterion or practice which he applies to others equally, but which puts B at a particular disadvantage when compared to others not of his belief, which cannot be shown to be a proportionate means of achieving a legitimate aim. In the context of flexible working, it may be that an employee makes a request for a shorter working day or time off, in order to undertake religious observance. An obvious example might be an Orthodox Jewish employee who wishes to work a compressed week, four days instead of five with Friday off in order to observe the Sabbath. The employee can either seek to argue that they were refused simply because they were Jewish (unlikely but a possible claim of direct religious discrimination). More likely, if the employer insists on the five day working, the individual could pursue a claim of indirect discrimination. The argument would run that the requirement to work a full week disadvantages the employee and although it is being applied to all employees, it puts the Jewish employee at a disadvantage. Can the business demonstrate that the requirement, with no exceptions, for all to work five days instead of four is a proportionate means of achieving a legitimate aim? The need must be genuine, it must translate to the real requirements of the operation/requirements of the business and it must be proportionate – in the sense that it can genuinely be shown that no

THOROGOOD PROFESSIONAL INSIGHTS

45

4 OTHER FLEXIBLE WORKING RIGHTS

exceptions can be tolerated, bearing in mind the EAT’s guidance in Edwards v London Underground (No 2) (referred to above). The same reasons that can be relied upon to allow a legitimate refusal of a flexible working request under the parental leave provisions would be helpful, such as the disruption, the effect on quality/production, customer service and cost. Like the remedies for sex discrimination, a successful complaint under the religious discrimination provisions carry the same remedies as to compensation, injury to feelings and recommendations.

Disability Discrimination Predating the religious discrimination provisions and indeed the flexible working legislation, the Disability Discrimination Act 1995 (DDA) came into effect on 1 January 1996. It contains a complex definition of who gains protection as a disabled person, which is outside the scope of this text. In summary, a disabled person is an individual who can demonstrate that he/she has a physical or mental impairment which has a substantial and long term effect on normal day to day activities. The recognised normal day to day are listed as: •

mobility;

•

manual dexterity;

•

physical coordination;

•

continence;

•

ability to lift, carry or otherwise move everyday objects;

•

speech, hearing or eyesight;

•

memory or ability to concentrate, learn or understand; or

•

perception of the risk of physical danger.

The DDA contains very similar provisions as to direct and indirect discrimination with some key differences. Thus a refusal to allow someone to work flexibly on grounds of their disability or less favourable treatment, is unlawful discrimination. Again, the indirect discrimination provisions are contained in the Act. More importantly, however, is the positive obligation on the part of the employer to make reasonable adjustments where any physical feature or provision, criterion or practice – which of course would include working arrangements and working patterns as well as place of work – places a disabled employee at a substantial disadvantage, in comparison with persons who are not disabled.

THOROGOOD PROFESSIONAL INSIGHTS

46

4 OTHER FLEXIBLE WORKING RIGHTS

Where an individual therefore faces difficulties in adopting or working an employer’s standard working hours or working arrangements, an employer must make reasonable adjustments to remove that disadvantage and alleviate the difficulty. A variety of situations may occur, for example: •

An individual may face mobility issues making it difficult for them to work at the employer’s premises in which case, a reasonable adjustment would be to allow flexibility and enable the work to be carried out from the disabled person’s home.

•

An employee’s condition may mean that perhaps they have difficulty concentrating for a full working day and need a late start or shorter hours; again, requiring them to work the normal work pattern may create a disadvantage which will be reasonable for the employer to remove by adjusting the working arrangements and tailoring them to the individual.

In assessing what is reasonable, the following would have to be considered: •

whether taking the step would prevent the disadvantage or effect;

•

whether it is practicable;

•

the financial and other costs incurred by the employer and the extent of any disruption;

•

the extent of the employer’s financial and other resources;

•

the availability of financial or other assistance (including from outside bodies);

•

the nature of the activities of the employer and size of the undertaking.

(Section 18B of the DDA) The legislation goes on to give some examples which include adjusting premises, allocating duties elsewhere, transferring the individual to an existing vacancy and importantly, altering the hours of work or training or assigning a different place of work or training. Supporting the DDA is a Code of Practice which has been revised and updated recently (October 2004), issued by the Disability Rights Commission. This gives the following useful examples of when flexibility should be considered and adjustments made:

THOROGOOD PROFESSIONAL INSIGHTS

47

4 OTHER FLEXIBLE WORKING RIGHTS

Altering the person’s hours of work or training This could include allowing a disabled person to work flexible hours to enable him to have additional breaks to overcome fatigue arising from his disability. It could also include permitting part-time working, or different working hours to avoid the need to travel in the rush hour if this is a problem relating to an impairment. A phased return to work with a gradual build-up of hours might also be appropriate in some circumstances.

Assigning the person to a different place of work or training An employer relocates the work station of a newly disabled employee (who now uses a wheelchair) from an inaccessible third floor office to an accessible one on the ground floor. It would be reasonable to move his place of work to another premises of the same employer if the first building is inaccessible.

Allowing the person to be absent during working or training hours for rehabilitation, assessment or treatment An employer allows a person who has become disabled more time off during work than would be allowed to non-disabled employees to enable him to have rehabilitation training. A similar adjustment would be appropriate if a disability worsens or if a disabled person needs occasional treatment anyway.

The same remedies in place under the SDA and Religious Regulations apply to successful claims under the DDA.

THOROGOOD PROFESSIONAL INSIGHTS

48

4 OTHER FLEXIBLE WORKING RIGHTS

Age Discrimination At present UK employment law does not provide any explicit protection against discrimination on grounds of a person’s age. However, through European obligations, the Government is committed to introducing age discrimination laws by December 2006. Current indications from the Department for Work and Pensions, are that the implementation date will be October 2006. We do not have the detail of the draft legislation as yet. The significance of this new area of protection may be very relevant to flexible working issues from two perspectives. Firstly, the age laws will protect both young and older employees from direct and indirect discrimination. For this reason it may be possible (particularly for older employees) to argue that objections to part-time or flexible working within an organisation amount to practices which disadvantages a greater number of employees over a certain age, than those under. Much will depend upon the statistics which could be collated to support such an argument. Given the information which has already been considered in Chapter 1, concerning the incidents of disability amongst the over 45s for example, it may well be that full-time/ traditional working patterns do disadvantage older employees or candidates for employment. If so, employers can anticipate challenges in this area and have to be prepared (as with sex discrimination claims) to justify their approach to refusing flexibility. A second issue, however, which may be of even greater significance, is the fact that there are a greater number of older employees in the workplace and, again from statistics already referred to in Chapter 1, in the fullness of time there will be many more over 60s than under 16s. This, coupled with the fact our population is living longer, ongoing pension uncertainties which mean individuals are working longer and that retirement ages are likely to rise, all increase the likelihood that as employees work longer, they may well wish to modify their working patterns because of health reasons or to achieve a better work/life balance. The question of retirement in the context of the new age discrimination legislation has caused much debate and controversy. Announcements in December 2004 from the Government Departments (the Department of Trade and Industry and the Department for Work and Pensions) who have been exercising their minds about whether to outlaw any compulsory retirement age, fix one at 65 or 70, confirmed that the plan is to allow a default retirement age of 65 coupled with the right for employees to request of their employer that they stay beyond that age. Employers receiving such requests will have to consider them and,

THOROGOOD PROFESSIONAL INSIGHTS

49

4 OTHER FLEXIBLE WORKING RIGHTS

one assumes, justify any refusal. It seems likely that requests to work beyond the compulsory age of 65 will mirror the process and provisions for flexible working but we will have to wait and see. All of this does mean that the prospect of employees working at least to the age of 65 (it will be possible for individual employers to impose an earlier retirement age if that can be shown to be appropriate and necessary in the circumstances) will increase. Coupled with such applications from employees, may be requests to adjust the working pattern, location or other arrangements. Given demographic changes and that there are many more economically active older people in our population than young people, employers have every incentive to positively encourage flexibility within their work environment in order to retain valuable skills.

THOROGOOD PROFESSIONAL INSIGHTS

50

THOROGOOD PROFESSIONAL INSIGHTS

Chapter 5 Best Practice – Key Recommendations Reviewing Existing Policies and Procedures and Introducing New Work Patterns........................................................52 Attitudes and Behaviour .....................................................................53 The Policy Itself ....................................................................................54

Chapter 5 Best Practice – Key Recommendations

Reviewing Existing Policies and Procedures and Introducing New Work Patterns Organisations should begin by reviewing their existing policies and procedures in respect of family friendly/flexible working rights. However, this is very much a starting point and a more in-depth response is required to establish how the needs of the business can be balanced with the needs of employees – the end result being the production of policies allowing for family/flexible working arrangements. In order to identify the needs of their employees, organisations should consider carrying out employee surveys, inviting them to consultative briefings, discussing ideas and getting their views. It is important that employee expectations are not built up by this exercise and that the discussion is both realistic and rational. Once the views of employees have been collected and analysed, it will be for the managers to consider whether and how they can be accommodated without a detrimental effect on the business. The existence of well-drafted policies will demonstrate that the organisation intends to be flexible and reduces complaints by employees, by setting realistic expectations and offering a clear system of appeal. The process, including the appeal mechanism, must reflect the statutory obligations. A new policy could be introduced for a trial period of operation. A trial period is likely to provide benefits on both sides by allowing participants to see if it works for them and allowing managers to assess its impact. Flexible working arrangements, which could be tested, include flexi-time, home working, term time working and v-time (voluntary reduction in hours for agreed periods). Throughout the trial period regular reviews should be conducted.

THOROGOOD PROFESSIONAL INSIGHTS

52

5 B E S T P R A C T I C E – K E Y R E C O M M E N D AT I O N S

Attitudes and Behaviour For many employees, the organisational culture is actually embodied in the attitude and behaviours of their immediate line manager. Whether an individual feels able to discuss issues outside of work, request different ways of working and believes that the organisation genuinely enables balance, will depend considerably on the skills of individual manager’s in creating an open communication culture of trust and respect. Employees should feel able to approach their managers about not only work-related issues but also personal issues and work/life balance needs if they arise. Developing open lines of communication is particularly crucial where employees on flexible or home-based contracts could potentially feel very isolated from the organisation. Employees should understand that when it comes to work/life balance there is no ‘one size fits all’ model. Employees are unique and have very different needs that change at different stages of their lives. It is important that managers learn about their members’ personal circumstances. Role modelling can be a very effective tool for demonstrating an organisation’s commitment to work/life balance. At the same time if a manager is seen to role model work/life balance values, it reinforces the message that individuals can progress within the organisation even when they make choices that support balance. It is important to recognise that work/life balance is actually a joint organisation-employee responsibility. It is a manager’s responsibility to ensure that conditions are put in place to facilitate work-life balance and empower individuals. By the same token it is for individuals to take responsibility for their own work/life balance. Many of the conditions that employers should put in place specifically relate to ensuring manageable workloads: setting clear and realistic plans, shifting workloads amongst team members, pushing back up the chain of command when necessary and redefining deadlines as conditions change. It is also important to keep an open-mind and experiment with different ways of working that could both maximise the work/life balance of the team and importantly, suit the needs of the business. Managers themselves are more open and understanding when clear about their role and responsibilities. For this reason training should be provided on the importance of flexible working, legal obligations and process. As with all initiatives the senior management team within any organisation must be seen to support and encourage the policy.

THOROGOOD PROFESSIONAL INSIGHTS

53

5 B E S T P R A C T I C E – K E Y R E C O M M E N D AT I O N S

Steve Harvey, director of people and culture at Microsoft states that being an employer of choice is about understanding staff and their families’ needs. The firm’s policies include a childcare centre and children’s Christmas party. At Microsoft, people policies are so strong that if an employee attempts to leave, their families force them to rethink. When head-hunters call the responses of the employees are “Why would I want to work anywhere else?” The importance of families is also recognised at Asda. David Smith, people director at Asda, agreed that family was important. The firm’s ‘shift swap’ policy allows staff to change shifts at short notice, for example, if a child falls ill. This means that where an employee is unable to come into work at short notice, there is a list of employees who can be contacted to take the absent employee’s place. The absent employee will then make arrangements to cover that employee’s shift when he or she returns to work.

The Policy Itself In many organisations, flexible working policies have been introduced which go beyond the statutory provisions, making it easier for individuals to pursue requests for flexible working and being less restrictive in what can be sought from the Employment Rights Act 1996. The components of a flexible working policy should include the following: •

An outline general statement, placing on record the organisation’s willingness to accommodate employees thus welcoming flexibility whilst at the same time making clear that the needs of the individual have to be balanced against the needs of the organisation.

•

A clear statement identifying who can seek flexible working and any eligibility requirements such as service limits. In principle, the wider the pool that flexible working can be offered to, the more positive approach it will be considered the employer takes. It should be made clear, however, that all individuals are eligible and will be treated equally when and if they are granted flexible working and that appropriate benefits will be pro rata’d, but there will be equality in opportunities for promotion, working conditions and training.

•

A clear statement as to the organisation’s approach to overtime working and overtime rates is often a good idea.

THOROGOOD PROFESSIONAL INSIGHTS

54

5 B E S T P R A C T I C E – K E Y R E C O M M E N D AT I O N S

•

To help the process and system for pursuing a request for flexible working or if the employer is having difficulty managing flexibility – on occasions one can get to ‘critical mass’ for those applications which have been granted – some form of register of interest so that as opportunities become available, individuals who have already expressed a wish can be approached.

•

It should be made clear that the system is for changes in hours or working arrangements – to whom should they be sent? What written details are needed? Of course, in terms of meetings, discussions and communication, as a minimum the procedural requirements of the flexible working regulations should be adopted.

•

Often flexible working policies contain examples of the sorts of opportunities and patterns which might be available that operate within the business, and indeed may also give examples of successful arrangements.

•

It is useful to indicate what sort of trial period might be appropriate and identify the paperwork that is required, for example, review periods, timescales and objectives.

•

For more detailed types of working patterns, it is often a good idea to highlight at the outset some of the issues to be addressed along with key factors. For example, with job sharing that the job share partner would have to be sought and the arrangement revisited in the event that one of the partners left.

•

In the case of home working, identifying some of the key areas surrounding health and safety, practical work arrangements, provision of equipment, the need for the employee to stay in touch and visit the business premises.

In all cases it is important to ensure that the flexible working policy and detailed arrangements are also consistent with the employer’s health and safety policy, equal opportunities policy, any policy on data protection (working from home, for example, in respect of home workers would have to be considered in terms of security of information) and working time policies or agreements which may exist with workers’ representatives or the trade union. The individual’s contract as a whole should be reviewed to identify and agree appropriate changes to any provisions inconsistent with the new working arrangements.

THOROGOOD PROFESSIONAL INSIGHTS

55

5 B E S T P R A C T I C E – K E Y R E C O M M E N D AT I O N S

There are many organisations and sources of further advice available, a few of which would include: •

The Equal Opportunities Commission: www.eoc.org.uk/ parentsandcarers

•

The Department of Trade and Industry: www.dti.gov.uk

•

The Chartered Institute of Personnel and Development: www.cipd.co.uk

•

Equality Direct: www.equalitydirect.org.uk

It is outside the scope of this text to examine other parental rights which exist, but it is important not to lose sight of these ‘time off’ rights, including: •

maternity leave

•

paternity leave

•

adoption leave and paternity adoption leave

•

parental leave (13 weeks for each child)

•

time off for dependants.

All of these rights contain their own conditions, eligibility requirements and notice obligations, but sit alongside the flexible working provisions, particularly those in place to assist working parents.

THOROGOOD PROFESSIONAL INSIGHTS

56

THOROGOOD PROFESSIONAL INSIGHTS

Chapter 6 Future Changes Just a Family Thing?............................................................................59 Conclusion............................................................................................60

Chapter 6 Future Changes A number of organisations, including the DTI, have been considering the existing flexible working arrangements in the UK, with a view to recommending future changes. In addition, the current Government has been in discussions with employers and trade unions with a view to building upon existing rights. In 2004, the Maternity Alliance conducted its own survey on flexible working requests and published a report with certain proposals aimed at improving the existing rights. The Alliance’s concern was two fold: that parents are still not pursuing requests and that they are being refused or disadvantaged as a consequence of making requests for flexibility. The recommendations made in the Alliance’s Report include the following: •

Allowing a parent to reduce their working hours during the first year after a child’s birth.

•

Allowing an employee to challenge a refusal at the Employment Tribunal thus extending the existing, limited remedy.

•

Increasing the remedy from eight weeks’ pay for a refusal or breach of procedure.

•

Introducing a Code of Practice which tribunals can consider when making an assessment of any complaint under the provisions.

From the Government itself, in addition to a promise to increase childcare facilities throughout the UK, is a key suggestion to not just increase the period of paid maternity leave (currently only the first 26 weeks are paid), but to allow, as between the mother and father, the sharing of that maternity absence. The extension of paid maternity leave was announced at the pre budget report by the Chancellor of the Exchequer, Gordon Brown in December 2004. So far as flexible working is concerned, in September 2004 the Secretary of State for Trade and Industry (Patricia Hewitt) also announced in an interview with the Financial Times, that part of the Labour Manifesto seeking its third term would include extending the right to flexible working for employees who have caring responsibilities for elderly or disabled relatives. Alongside this announcement, in his speech to the Trade Unions Congress in 2004, Tony Blair confirmed that these measures would not be introduced before 2006.

THOROGOOD PROFESSIONAL INSIGHTS

58

6 FUTURE CHANGES

Further changes are afoot. At the end of 2004, the Equal Opportunities Commission announced that it was investigating what obstacles prevent parents from seeking flexible working hours. The EOC remains concerned about the lack of uptake but more importantly, the impact which flexible working has on individual careers and salary, as well as promotion opportunities. This investigation will end in the Spring of 2005 and further recommendations are likely to be put to the Government (Patricia Hewitt, Trade Secretary and Minister for Women) to build perhaps upon those already made by the Maternity Alliance. In the meantime, the EOC’s annual update Who Runs Britain? in 2004 expressed concern at the few women in senior positions. Their view is that this is in no small part due to insufficient flexibility enabling working mothers to combine caring roles with career advancement. The report calls upon the Government to extend flexible working rights to all parents and, through the Parents and Carers Coalition (an alliance of currently 37 organisations aimed at promoting parents’ and carers’ rights and needs) the EOC are urging the Government to develop a new National Family Strategy.

Just a Family Thing? Notwithstanding this, it is clear that the work/life issue is moving away from being a woman’s issue and into the mainstream. Going forward employers will find that the challenge is not limited to policies which are family-friendly but life-friendly, with a greater pool of employees and workers seeking such advantages. Child-free staff can become resentful about family-friendly employment policies, feeling that it is unfair that, when a mother is dashing off to fetch her daughter from school, it is the child-free staff who are left behind at work covering the job. Maternity, parental rights and part-time rights have been improved and (other than maternity) should be available to all employees regardless of whether they are male or female, or whether or not they have children. Organisations are faced with a challenge of transforming its culture to one in which flexibility is beneficial to all; accessible on an equitable basis, in accordance with organisational limits; and managed in a professional, rather than an ad hoc manner. This can only be achieved by convincing those in senior management positions to actively promote and adopt such practices. Policies such as parental leave and carer’s leave should be more widely publicised in the workplace.

THOROGOOD PROFESSIONAL INSIGHTS

59

6 FUTURE CHANGES

In a recent survey from the CIPD and law firm Lovells, A Parent’s Right to Ask, nine out of ten employees said that they had no significant problems complying with the new flexible working rights for parents, and that 72% would consider requests for flexible working from all staff. Moreover, the findings of the survey, according to Mike Emmott, CIPD adviser in employee relations, supported the CIPD’s view that the new right should be extended to all. He stated that “When the right was introduced, the CIPD urged that it should apply to all employees, not just parents. In the light of this research, we believe that judgement was right”.

Conclusion Having a work/life balance is becoming more of a desire for employees today. The implementation of family friendly/flexible working policies clearly have benefits for not only employees but also for employers. By implementing such policies the employer can ensure the retention of key staff, a reduction in recruitment costs and absenteeism, and a more productive workforce. On any analysis, what is clear is that the flexible working rights currently in place are here to stay and will only be expanded and built upon. Rather than diminish, they are almost certainly going to be taken further and extended considerably.

THOROGOOD PROFESSIONAL INSIGHTS

60

THOROGOOD PROFESSIONAL INSIGHTS

Appendices Appendix A – Flexible Working Application Form .........................62 Appendix B – Summary Flowchart of Process.................................65

Appendices

Appendix A Flexible Working Application Form

THOROGOOD PROFESSIONAL INSIGHTS

62

APPENDICES

THOROGOOD PROFESSIONAL INSIGHTS

63

APPENDICES

THOROGOOD PROFESSIONAL INSIGHTS

64

APPENDICES

Appendix B Summary Flowchart of Process How does the process work?

THOROGOOD PROFESSIONAL INSIGHTS

65

Other specially commissioned reports BUSINESS AND COMMERCIAL LAW

The commercial exploitation of intellectual property rights by licensing

The Competition Act 1998: practical advice and guidance

CHARLES DESFORGES

SUSAN SINGLETON

£125.00

£149.00

1 85418 285 4 • 2001

1 85418 205 6 • 2001

Expert advice and techniques for the identification and successful exploitation of key opportunities.

Failure to operate within UK and EU competition rules can lead to heavy fines of up to 10 per cent of a business’s total UK turnover.

This report will show you: •

how to identify and secure profitable opportunities

•

strategies and techniques for negotiating the best agreement

•

the techniques of successfully managing a license operation.

Insights into successfully managing the in-house legal function BARRY O’MEARA

£65.00

1 85418 174 2 • 2000

Damages and other remedies for breach of commercial contracts ROBERT RIBEIRO

£125.00

Negotiating the fault line between private practice and in-house employment can be tricky, as the scope for conflicts of interest is greatly increased. Insights into successfully managing the In-house legal function discusses and suggests ways of dealing with these and other issues.

1 85418 226 X • 2002 This valuable new report sets out a systematic approach for assessing the remedies available for various types of breach of contract, what the remedies mean in terms of compensation and how the compensation is calculated.

Commercial contracts – drafting techniques and precedents ROBERT RIBEIRO

£125.00

1 85418 210 2 • 2002 The Report will: •

Improve your commercial awareness and planning skills

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways:

•

Enhance your legal foresight and vision

1 Email: [email protected]

•

Help you appreciate the relevance of rules and guidelines set out by the courts

2 Telephone: +44 (0)20 7749 4748

Ensure you achieve your or your client’s commercial objectives

4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

•

t +44 (0)20 7749 4748

e [email protected]

3 Fax: +44 (0)20 7729 6110

w w w w. t h o r o g o o d . w s

The legal protection of databases SIMON CHALTON

Email – legal issues £145.00

SUSAN SINGLETON

£95.00

1 85418 245 5 • 2001

1 85418 215 3 • 2001

Inventions can be patented, knowledge can be protected, but what of information itself?

What are the chances of either you or your employees breaking the law?

This valuable report examines the current EU [and so EEA] law on the legal protection of databases, including the sui generis right established when the European Union adopted its Directive 96/9/EC in 1996.

The report explains clearly:

Litigation costs MICHAEL BACON

•

How to establish a sensible policy and whether or not you are entitled to insist on it as binding

•

The degree to which you may lawfully monitor your employees’ e-mail and Internet use

•

The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic Communications Act 2000

•

How the Data Protection Act 1998 affects the degree to which you can monitor your staff

•

What you need to watch for in the Human Rights Act 1998

•

TUC guidelines

•

Example of an e-mail and Internet policy document.

£95.00

1 85418 241 2 • 2001 The rules and regulations are complex – but can be turned to advantage. The astute practitioner will understand the importance and relevance of costs to the litigation process and will wish to learn how to turn the large number of rules to maximum advantage.

International commercial agreements REBECCA ATTREE

£175

1 85418 286 2 • 2002 A major new report on recent changes to the law and their commercial implications and possibilities. The report explains the principles and techniques of successful international negotiation and provides a valuable insight into the commercial points to be considered as a result of the laws relating to: pre-contract, private international law, resolving disputes (including alternative methods, such as mediation), competition law, drafting common clauses and contracting electronically. It also examines in more detail certain specific international commercial agreements, namely agency and distribution and licensing. For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

S e e f u l l d e t a i l s o f a l l T h o r o g o o d t i t l e s o n w w w. t h o r o g o o d . w s

HR AND EMPLOYMENT LAW

Employee sickness and fitness for work – successfully dealing with the legal system GILLIAN HOWARD

£95.00

1 85418 281 1 • 2002 Many executives see Employment Law as an obstacle course or, even worse, an opponent – but it can contribute positively to keeping employees fit and productive. This specially commissioned report will show you how to get the best out of your employees, from recruitment to retirement, while protecting yourself and your firm to the full.

How to turn your HR strategy into reality TONY GRUNDY

£129.00

1 85418 183 1 • 1999 A practical guide to developing and implementing an effective HR strategy.

Internal communications JAMES FARRANT

£125

1 85418 149 1 • July 2003 How to improve your organisation’s internal communications – and performance as a result.

Data protection law for employers SUSAN SINGLETON

£125

There is growing evidence that the organisations that ‘get it right’ reap dividends in corporate energy and enhanced performance.

1 85418 283 8 • May 2003 The new four-part Code of Practice under the Data Protection Act 1998 on employment and data protection makes places a further burden of responsibility on employers and their advisers. The Data protection Act also applies to manual data, not just computer data, and a new tough enforcement policy was announced in October 2002.

MARK THOMAS

£69.00

1 85418 270 6 • 2001 Practical advice on how to attract and keep the best.

Successfully defending employment tribunal cases

1 85418 008 8 • 1997

This report will help you to understand the key practical and legal issues, achieve consensus and involvement at all levels, understand and implement TUPE regulations and identify the documentation that needs to be drafted or reviewed.

New ways of working STEPHEN JUPP

DENNIS HUNT

£95.00

Why do so many mergers and acquisitions end in tears and reduced shareholder value?

Successful graduate recruitment JEAN BRADING

Mergers and acquisitions – confronting the organisation and people issues

£99.00

£95 1 85418 169 6 • 2000

1 85418 267 6 • 2003 Fully up to date with all the Employment Act 2002 changes. 165,000 claims were made last year and the numbers are rising. What will you do when one comes your way?

t +44 (0)20 7749 4748

e [email protected]

New ways of working examines the nature of the work done in an organisation and seeks to optimise the working practices and the whole context in which the work takes place.

w w w w. t h o r o g o o d . w s

Knowledge management SUE BRELADE, CHRISTOPHER HARMAN

changes to internal disciplinary and grievance procedures

•

significant changes to unfair dismissal legislation

•

new rights for those employed on fixed-term contracts

•

the introduction of new rights for learning representatives from an employer’s trade union

£95.00

1 85418 230 7 • 2001 Managing knowledge in companies is nothing new. However, the development of a separate discipline called ‘knowledge management’ is new – the introduction of recognised techniques and approaches for effectively managing the knowledge resources of an organisation. This report will provide you with these techniques.

Reviewing and changing contracts of employment ANNELISE PHILLIPS, TOM PLAYER and PAULA ROME

This specially commissioned new report examines each of the key developments where the Act changes existing provisions or introduces new rights. Each chapter deals with a discreet area.

Email – legal issues £125

SUSAN SINGLETON

£95.00

1 85418 215 3 • 2001

1 85418 296 X • 2003 The Employment Act 2002 has raised the stakes. Imperfect understanding of the law and poor drafting will now be very costly.

360,000 email messages are sent in the UK every second (The Guardian). What are the chances of either you or your employees breaking the law? The report explains clearly:

This new report will: •

Ensure that you have a total grip on what should be in a contract and what should not

•

Explain step by step how to achieve changes in the contract of employment without causing problems

•

Enable you to protect clients’ sensitive business information

•

Enhance your understanding of potential conflict areas and your ability to manage disputes effectively.

Applying the Employment Act 2002 – crucial developments for employers and employees AUDREY WILLIAMS

•

•

How to establish a sensible policy and whether or not you are entitled to insist on it as binding

•

The degree to which you may lawfully monitor your employees’ e-mail and Internet use

•

The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic Communications Act 2000

•

How the Data Protection Act 1998 affects the degree to which you can monitor your staff

•

What you need to watch for in the Human Rights Act 1998

•

TUC guidelines

•

Example of an e-mail and Internet policy document.

£125

1 85418 253 6 • May 2003 The Act represents a major shift in the commercial environment, with far-reaching changes for employers and employees. The majority of the new rights under the family friendly section take effect from April 2003 with most of the other provisions later in the year. The consequences of getting it wrong, for both employer and employee, will be considerable – financial and otherwise. The Act affects nearly every aspect of the work place, including: •

flexible working

•

family rights (adoption, paternity and improved maternity leave)

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

S e e f u l l d e t a i l s o f a l l T h o r o g o o d t i t l e s o n w w w. t h o r o g o o d . w s

SALES, MARKETING AND PR

Implementing an integrated marketing communications strategy

Tendering and negotiating for MoD contracts

NORMAN HART

TIM BOYCE

£99.00

£125.00

1 85418 120 3 • 1999

1 85418 276 5 • 2002

Just what is meant by marketing communications, or ‘marcom’? How does it fit in with other corporate functions, and in particular how does it relate to business and marketing objectives?

This specially commissioned report aims to draw out the main principles, processes and procedures involved in tendering and negotiating MoD contracts.

Defending your reputation Strategic customer planning ALAN MELKMAN AND PROFESSOR KEN SIMMONDS

SIMON TAYLOR £95.00

1 85418 255 2 • 2001 This is very much a ‘how to’ Report. After reading those parts that are relevant to your business, you will be able to compile a plan that will work within your particular organisation for you, a powerful customer plan that you can implement immediately. Charts, checklists and diagrams throughout.

1 85418 251 • 2001 ‘Buildings can be rebuilt, IT systems replaced. People can be recruited, but a reputation lost can never be regained…’ ‘The media will publish a story – you may as well ensure it is your story’ Simon Taylor ‘News is whatever someone, somewhere, does not want published’ William Randoplh Hearst When a major crisis does suddenly break, how ready will you be to defend your reputation?

Selling skills for professionals KIM TASSO

£65.00

1 85418 179 3 • 2000 Many professionals still feel awkward about really selling their professional services. They are not usually trained in selling. This is a much-needed report which addresses the unique concerns of professionals who wish to sell their services successfully and to feel comfortable doing so. ‘Comprehensive, well written and very readable… this is a super book, go and buy it as it is well worth the money’ Professional Marketing International

Insights into understanding the financial media – an insider’s view SIMON SCOTT

This practical briefing will help you understand the way the financial print and broadcast media works in the UK.

European lobbying guide £129.00

1 85418 144 0 • 2000

Corporate community investment £75.00

Understand how the EU works and how to get your message across effectively to the right people.

1 85418 192 0 • 1999 Supporting good causes is big business – and good business. Corporate community investment (CCI) is the general term for companies’ support of good causes, and is a very fast growing area of PR and marketing.

t +44 (0)20 7749 4748

£99.00

1 85418 083 5 • 1998

BRYAN CASSIDY

CHRIS GENASI

£95.00

e [email protected]

w w w w. t h o r o g o o d . w s

Lobbying and the media: working with politicians and journalists

Managing corporate reputation – the new currency

MICHAEL BURRELL

SUSAN CROFT and JOHN DALTON

£95.00

1 85418 240 4 • 2001

1 85418 272 2 • June 2003

Lobbying is an art form rather than a science, so there is inevitably an element of judgement in what line to take. This expert report explains the knowledge and techniques required.

ENRON, WORLDCOM… who next?

Strategic planning in public relations KIERAN KNIGHTS

£69.00

At a time when trust in corporations has plumbed new depths, knowing how to manage corporate reputation professionally and effectively has never been more crucial.

Surviving a corporate crisis – 100 things you need to know

1 85418 225 0 • 2001

PAUL BATCHELOR

Tips and techniques to aid you in a new approach to campaign planning.

1 85418 208 0 • April 2003

Strategic planning is a fresh approach to PR. An approach that is fact-based and scientific, clearly presenting the arguments for a campaign proposal backed with evidence.

£125

£125

Seven out of ten organisations that experience a corporate crisis go out of business within 18 months. This very timely report not only covers remedial action after the event but offers expert advice on preparing every department and every key player of the organisation so that, should a crisis occur, damage of every kind is limited as far as possible.

FINANCE

Tax aspects of buying and selling companies MARTYN INGLES

Practical techniques for effective project investment appraisal £99.00

RALPH TIFFIN

£99.00

1 85418 189 0 • 2001

1 85418 099 1 • 1999

This report takes you through the buying and selling process from the tax angle. It uses straightforward case studies to highlight the issues and more important strategies that are likely to have a significant impact on the taxation position.

How to ensure you have a reliable system in place. Spending money on projects automatically necessitates an effective appraisal system – a way of deciding whether the correct decisions on investment have been made.

Tax planning opportunities for family businesses in the new regime CHRISTOPHER JONES

£49.00

1 85418 154 8 • 2000 Following recent legislative and case law changes, the whole area of tax planning for family businesses requires very careful and thorough attention in order to avoid the many pitfalls.

S e e f u l l d e t a i l s o f a l l T h o r o g o o d t i t l e s o n w w w. t h o r o g o o d . w s

MANAGEMENT AND PERSONAL DEVELOPMENT

Strategy implementation through project management TONY GRUNDY

£95.00

1 85418 250 1 • 2001 The gap Far too few managers know how to apply project management techniques to their strategic planning. The result is often strategy that is poorly thought out and executed. The answer Strategic project management is a new and powerful process designed to manage complex projects by combining traditional business analysis with project management techniques.

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

t +44 (0)20 7749 4748

e [email protected]

w w w w. t h o r o g o o d . w s