The government will introduce a new statutory right of up to one week of unpaid leave for carers. This legislation resulted from the 2020 consultation, which recognised the challenge of juggling work and caring responsibilities.

Reasoning behind the legislation

The Conservative party addressed several workplace inequalities in its 2019 election manifesto. From incorporating new rights regarding the concept of flexible working to a proposal to extend leave entitlement to unpaid carers, they discussed various policies that UK employment law could include.

The coronavirus pandemic’s impact on many individuals and families, coupled with the UK’s ageing population, has highlighted the necessity of addressing this inequality. While introducing this new statutory right could be costly for businesses, the government views this intervention as essential to ensure unpaid carers have full access to the labour market. The costs to businesses are worth the potential benefits, such as increased employee loyalty and satisfaction the policy may bring. This should reduce staff turnover and increase productivity which will have long term cost-effective benefits for businesses.

The intention is that unpaid carers could utilise their carer’s leave to provide the care themselves or make arrangements to provide care for a dependant.

Eligibility

Employees who have a partner, civil partner, spouse, parent, child or household member who relies on them for care will be eligible to take carer’s leave. They can exercise carer’s leave from their first day of employment.

The dependent must have a long-term care need. This will be defined in the new legislation as a disability as defined in the Equality Act 2020, a long-term illness or injury, or issues relating to old age. Some limited exceptions will be accepted, such as situations where the person being cared for is terminally ill.

Exercising the right to statutory carer’s leave

Employees will be able to ‘self-certify’ their eligibility to take carer’s leave. If employees abuse the system, employers can deal with this in the same way as any disciplinary matter.

In the drive towards flexible working, employees will be able to take statutory carer’s leave in half days, individual days or a one-week block. The notice period must be twice the length of the leave plus one day to take it.

Employers cannot deny a carer’s leave request but can request to postpone it on limited grounds. For example, if they believe it will disproportionately affect their business operation.

It will be automatically unfair to dismiss an employee due to or in connection with them exercising the legislation.

What this means for workplace equality

Introducing the right for employees to claim carer’s leave is part of the government’s strategy to address workplace inequalities.

The government hopes to encourage more unpaid carers to enter or remain in the workforce by giving them the option of taking leave. As the UK deals with an ageing population and staff shortages, this option may become essential.

Implementation of the new legislation

The government says it will introduce the right to carer’s leave as a day 1 statutory employment right when parliamentary time allows. In light of these upcoming changes, employers should undertake necessary preparations in amending or updating their written policies.

Stone Rowe Brewer LLP provides high-quality legal services for individuals and businesses. Our employment lawyers are practical, proactive and user friendly. If you want to learn more about the new statutory right for carer’s leave or have any general employment law queries, please call us on 020 8891 6141.

In 2019, the government committed to supporting flexible working and, subject to consultation, introducing measures to help ‘make flexible working the default’ unless employers have good reasons not to.

On the 23rd of September 2021, in the wake of COVID-19, the Department for Business, Energy, and Industrial Strategy (BEIS) launched a consultation to ask opinions on whether to ‘make flexible working the default’.

The consultation reviews several reforms to the existing flexible working legislation, including making the right to ask for flexible working a “day one” right.

The current law on flexible working

Under the current law, employees with at least 16 weeks’ continuous employment can apply to work flexibly. Such employees can make one request in any 12-month period.

Eligible employees can request to change when they are required to work, their work hours, and their place of work.

• The employer has three months to decide on their employee’s request. The employer can refuse a request for the following reasons:
• The burden of extra costs
• Profound effect on the ability to meet customer demand
• Inability to recruit more support
• Inability to recognise work amongst peers
• Serious impact on quality
• Serious impact on performance
• Planned structural changes
• Lack of work during the periods that you propose work

What are the proposed changes?

The consultation sets out five proposals to change the existing legislative framework:

1. Enabling employees to request flexible working from ‘day one’.

Currently, a 26-week qualifying period is in place: employees can only request flexible working if they have worked for their employer for a minimum of 26 weeks. The government believes making flexible working available from ‘day one’ will urge employers to consider flexible working options early in job design and give employees more opportunities to request it.

Notably, despite the title of consultation, the proposal is not seeking a default right to work flexibly but instead the right to request flexible working.

2. Ensuring the eight business reasons set out in the Employment Rights Act for refusing a request remain valid.

Employers must be able to point to one or more of the business grounds set out in the legislation when they turn down a request to work flexibly under the statutory scheme.

The government acknowledges that not all businesses can offer flexible working and makes it clear that employers should be able to reject a request if the circumstances permit it.

3. Requiring employers to consider alternatives if they turn down a request

If an employer has relevant business reasons, they can turn down a flexible working request. The government wants to determine whether it’s viable to ask employers to set out alternatives when they reject a request. Whilst many employers are already doing this, clear and practical guidance on potential alternatives is necessary if flexible working does become a requirement.

4. Evaluating the administrative process

The consultation seeks views on changing the legal requirements around flexible working requests; should more than one request be permitted per year, and should an employer’s three-month period to respond to a flexible working application be reduced?

If responses to the consultation suggest one can make more than one flexible working request in a 12-month period, this will significantly impact the employers. The government would need to provide employers with clear guidance on dealing with a situation where an employee submits the same request again.

5. Temporary arrangements?

Under the current regulations, when an employer agrees to an employee’s flexible working request, it will permanently change their employment contract unless the parties agree otherwise. The government believes that the ability for employees to request a temporary arrangement is underused and wants to find out whether businesses know that they can agree on short-term flexible working arrangements.

In addition to these proposed changes, the “Flexible Working Taskforce” will decide how to proceed with the lessons learnt over the past 18 months alongside the transition to new ways of working.

The government describes its flexible working plans as “empowering”, giving workers “more say over when and where they work”. However, for some, the proposals are too limited: they don’t enable employees to work flexibly, and employers are not required to state in job ads their availability for flexible working.

In light of the Covid pandemic, we must remember that the move towards flexible working has already begun. Employers should thus be understanding of their employees’ wishes to work flexibly.

Employment Law is complex and constantly changing and the consequences of getting on the wrong side of it are potentially very damaging. It is, therefore, essential that the advice provided to both employers and employees is practical and takes account of not only the law but what an employer or employee aspires to achieve. Contact us on 020 8891 6141

As the end of Coronavirus Job Retention (Furlough) Scheme approaches fast (31st October 2020), we focus here on the option that employers have of using a settlement agreement in order to manage their workforce requirements when faced with the uncertain economic effect of Covid-19. We also look at settlement agreements here from the point of view of employees who have been offered them.

What happens when Furlough ends?

Furlough has provided a means to avoid employees being made redundant by partly funding their wages if it is unsafe for them to go into the workplace and if they could not work from home. Nonetheless many employers have still felt the need to make redundancies and as the Furlough scheme comes to a close this will be further to the forefront of the minds of employers that are concerned over the longer-term impact of Covid-19 on the economy. In some cases, this may involve a settlement agreement which offers employees the potential to receive a better redundancy package while also preventing them from bringing an employment tribunal against the employer.

It should also be stressed that employers can also make employees redundant at any point while the Furough scheme is in place. On the flip side, to encourage job retention, and before going down the redundancy or settlement agreement route, employers should consider that the government will pay businesses a £1,000 bonus for every furloughed employee employers keep on until the end of January.

What is a protected conversation?

The concept of a protected conversation is to allow employers to enter into discussions with an employee with a view to terminating their employment under a settlement agreement, without the parties being able to rely on the details of the conversation as evidence of an unfair dismissal claim. This is therefore when employees usually first become aware that they will be offered a settlement agreement and is often completely out of the blue. It is immediately following that protected conversation that many employees sensibly decide to take legal advice.

What are the key features of Settlement Agreement?

A Settlement Agreement is a legal contract entered into between an employer and an employee to end the employment relationship.

When entering into a Settlement Agreement, an employee would normally agree that:

1. their employment is terminated,
2. they accept a sum in compensation, and
3. they agree not to sue their employers.

Every settlement agreement must be supported by independent legal advice provided to the employee with the legal fees of such advice met fully or, at least, partly by the employer.

What are the benefits of a Settlement Agreement for an Employee?

Difficulties and conflicts at work are often extremely stressful for any employee. Instead of spending weeks or months involved in internal procedures, mediation and an Employment Tribunal claim, many employees prefer to move on and put any dispute behind them. The financial compensation paid under a settlement agreement can reflect what has taken place and should be over and above the employee’s contractual entitlements and statutory rights. The payment under the settlement agreement would therefore often in effect constitute an enhanced redundancy package. This ultimately then means an employee can get compensated without the stress and uncertainty of going through an Employment Tribunal process.

What are the benefits of a Settlement Agreement for an Employer?

A Settlement Agreement is often a mechanism to implement a commercial decision to end a dispute quickly and sensibly, without admitting any fault or liability and also keeping any dispute confidential.

Even after a lengthy internal process, an employer may still be taken to an Employment Tribunal in any event, with little to gain from even if the outcome of the proceedings is in favour of the employer. The employer will have unrecoverable legal costs and valuable management time gone forever, not to mention the potential bad publicity. Settlement Agreements circumnavigate such negative scenarios and give an employer certainty, and control over their costs, and they are effective in terms of risk management.

Let us take it from here

If you have been provided with a settlement agreement by your employer, we shall be pleased to assist you in providing the required advice and your employers will often agree to pay all your legal fees for obtaining that advice.

If you are an employee or employer and would like further information, you can speak to one of our civil dispute resolution solicitors on 020 8891 6141. Alternatively, contact Jamie Jones or Paige Symns to discuss your settlement agreement. 

In these unprecedented times, all businesses are facing major challenges to their ongoing viability. Every day we read of well-respected names that are entering administration or “closing their doors”, even though the Government has announced huge support packages to assist the business world. In this article, I am specifically looking at one of those support schemes, the Coronavirus Job Retention Scheme (The Furlough Scheme), and the benefits and implications for employers.

What are the key features of the Furlough Scheme?

The scheme potentially takes in all employees who were on the PAYE payroll on 28 February 2020. They can be employed under different types of contract – full time, part time, zero hours etc.

The government will cover 80% of furloughed employees’ wage costs, up to a maximum of £2500 per month (plus Employer National Insurance and minimum automatic employer pension contributions). Employers may choose to top up the wages if finances permit but they do not have to. Rules provide for how the £2500 is calculated. It is a grant, not a loan and does not need to be repaid. Payments made to furloughed employees are taxable.

Employees cannot do any sort of work for their employer whilst on furlough, even for free. What they can do is training or volunteer work.

Furlough leave is for a minimum of three weeks. After that, employees can be put on a fresh period of furlough leave. Alternatively, staff can be rotated around, taking it in turns to be on a three-week furlough leave.

How to select for Furlough?

Employees need to agree to be placed on furlough. This should be confirmed in writing to them. When choosing who to place on furlough, employers do not need to demonstrate that redundancy was the only alternative. The usual employment law rules otherwise apply, so employers cannot select those to go on furlough for a discriminatory reason. Employers could consider a version of a redundancy selection exercise – ask for volunteers and then have a pooling and selection process. A fair procedure needs to be used, or run the risk of claims. If more than 20 are to be put on furlough, the employer will need to carry out collective consultation, unless it can show a ‘special circumstances’ defence.

Will annual leave accrue during Furlough leave?

Yes, although the HMRC guidance does not currently expressly deal with annual leave, it does confirm that: “Employees that have been furloughed have the same rights as they did previously”. This will presumably include entitlement to accrue annual leave in accordance with their contract.

To the extent that an employee’s contractual annual leave entitlement exceeds the minimum statutory entitlement of 5.6 weeks, it may be possible to expressly agree that the employee will ‘waive’ their enhanced entitlement in exchange for their pay being ‘topped-up’ (beyond 80%) during the period of furlough leave. So, by way of how this might work: if an employee’s contract provides for 25 days’ holiday plus 8 days’ bank holidays, then agreement could be sought to waive 5 days of this entitlement and ‘convert’ that entitlement into cash which can be then used to ‘top-up’ their furlough leave pay.

What about employees already been made redundant who you may now think could have been dealt with under the Furlough Scheme?

Employers may be able to reinstate former employees who have been made redundant since 28 February 2020. Where an employer wants to allow an employee to return, but only for a fixed period, in order to benefit from Furlough leave then it might be possible to enter into a settlement agreement preventing any future claims when the employee leaves again. This will be particularly attractive for employers if an employee will accrue two years’ service during Furlough leave and where there is likely to be a redundancy situation after Furlough leave.

Alternatives

For some employers, Furlough leave is not suitable. For example:
They might still need the employees, but for fewer hours;
They might still need the employees 100%, but cannot afford to pay them 100%;

Negotiation of reduced pay and reduced hours remains possible. If necessary, redundancy is still possible (instead of or after Furlough leave). Again, however, process and consultation will be important even where timescales are tight, and especially where there are 20 or more individuals involved.

It is worth keeping in mind that when the current restrictions are lifted and Furlough leave comes to an end, many businesses will struggle to return to a normal state immediately.

Summary

Good employment practise was important before COVID and remains still at the essence of all that businesses do whilst utilising the scheme, with the scheme providing additional flexibility during a period when the economic knock-on effects may well have a considerable impact for some time.

If you would wish to dis cuss any aspects of the above, please contact James Macdonald on 020 8891 6141 or via j.macdonald@srb.co.uk

James Macdonald

The Supreme Court has ruled that a man violently attacked by a Morrisons employee was able to sue Morrisons for his injuries. Morrisons were deemed to be ‘vicariously liable’ for their employees actions. In a workplace context, vicarious liability means when an employer is liable for the actions of an employee. Employers should seek legal advice on the preventative measures they can put in place to limit their liability before such an event occurs.

The Claimant, Mr Mohamud, a man of Somali origin, stopped at a petrol station on 15 March 2008. The petrol station had a Morrisons supermarket attached to it and the premises were owned by Morrisons. A kiosk was manned by Mr Khan, a Morrisons employee, whose job it was to serve customers and see that the petrol pumps and the kiosk were kept in good running order. Mr Mohamud went into the shop to ask if it would be possible to print some documents from a USB stick he was carrying. Mr Khan, one of three members of staff on duty at the time, replied in expletive terms that it was not. When Mr Mohamud objected to being sworn at, Mr Khan ordered Mr Mohamud to leave, using foul and racist language.

Despite his supervisor’s protests, Mr Khan followed Mr Mohamud to his car, opened the passenger car door and told Mr Mohamud never to come back to the petrol station. When Mr Mohamud told Mr Khan to get out of the car, Mr Khan punched him in the head. Mr Mohamud got out of the car to shut the passenger door but Mr Khan attacked him further, punching and kicking him to the ground.

Whilst this is an extreme case, many employers are unaware that they can be vicariously liable for a wide range of actions committed by their employees such as bullying, harassment, discriminatory acts, libel and breach of copyright.

If you are an employer, we can advise you on the practical steps you can take to limit your liability for the actions of your employees. For further information please contact us today.

There has been a lot of discussion regarding the subject of so-called zero-hour contracts in recent years, and on 1^st April 2015, Ed Miliband promised to ‘end the epidemic’ (of zero-hour contracts), which he claims are ‘undermining family life’, if Labour are successful in the forthcoming General Election. The implications of such a decision are explored in detail below.

What are zero-hour contracts?

Zero-hour contracts differ from normal contracts of employment in that they do not guarantee that work will be provided by the employer, and further provides that the employer will only pay for work done (instead of being obliged to pay a set weekly wage and holiday or sick pay). This provides the employer with a degree of flexibility, but may also result in the worker having a lack of ‘job security’.

What is Labour proposing?

In essence, a law shall be passed in Labour’s first year in government that would ensure that workers who work ‘regular hours’ will have a ‘regular contract’, and this legal right will apply to all workers after having worked for a period of 12 weeks.

What are the implications for businesses?

Many businesses rely on flexible workers and truly value the work that they do. However, a large numbers of these businesses cannot provide constant work for individuals working under zero-hour contracts.

Therefore, following the proposed changes, it may be necessary for employers to terminate employee contracts due to a lack of work available, and it is absolutely essential that employers seek legal advice prior to making such a decision.

What are the implications for Workers/Individuals?

On a zero-hours contract, it is likely that you are classed as ‘self-employed’. However, the facts of your particular working situation may suggest that you’re an employee instead of self-employed. This distinction is incredibly important in relation to the employment rights you are entitled to claim. If you’re an employee then you qualify to claim for unfair dismissal (after a year’s service), redundancy pay, and maternity leave (among other things).  Self-employees are entitled to none of these rights.

Following the changes, any worker that enters into a normal employment contract after the 12-week period with their employer shall be classed as an ‘employee’.

However, any zero-hour contract worker made redundant as a result of their employer being unable to offer them a full contract of employment should seek legal advice immediately.

For further information, please contact us today.