Workers will be able to ask for flexibility on how, where and when they work.  It was suggested that this right would be available from the first day of employment, however currently it has remained that a request can only be made after 26 weeks of employment.

Whereas employers previously didn’t need to consult with their workers before giving their decision they will now be expected to consult with them on their request, providing a response within two months instead of the current three.

The new legislation – The Employment Relations (Flexible Working Act 2023) – also allows workers to make two requests a year – an increase from the current single annual request.

Furthermore, employees will no longer need to set out in their application the effect of their request on their employer’s business or how that could be dealt with.

Kerry Hudson, Employment solicitor says that whilst the changes affect the entitlement to make a flexible working request, and that a consultation would need to be had, the considerations the employer must bear in mind have not materially changed. A company can still refuse a worker’s request for flexible arrangements, particularly if it is not viable, or even detrimental to a business.

But with British business and industry facing ongoing problems with staff retention, most businesses today are willing to accommodate such requests in order to keep valued staff and avoid the expense of finding a replacement.

A report out earlier this year from global HR and payroll company Remote showed employee turnover in the UK and US had increased by nine per cent since 2019 – the last full year before the pandemic. In the UK it now stands at 35.6 per cent. Hybrid and remote workers in the UK were the least likely to look for new roles, at 38 per cent, compared to in-office workers (43.7 per cent). The report added that the recruitment of a new employee takes an average 40 days while the cost incurred to a business is an average 34.5 per cent of the new employee’s salary.

Although businesses didn’t legally have to agree to an employee’s request for flexible working, they did need to be mindful of other pieces of legislation such as the Equality Act 2010.  For example, if a request is made from an employee suffering from chronic fatigue syndrome for home working for some/all of their working week and it is not agreed, if the condition amounts to a disability, could the fact that the flexible working request being turned down be grounds for a failure to make reasonable adjustments and a claim for discrimination.

Similarly, a mother’s request when coming back from maternity leave for reduced hours is denied, could it amount to discrimination?

 A genuine attempt to consider the request together with consideration given for any possible compromise should be provided and the employer should be prepared to evidence that.  A proper reason needs to be advised as to why the request, if it can’t be agreed, should be set out.

Any new agreement should be formalised in writing, in many cases drawing up a new contract of employment outlining the varied terms and signed by both parties.

The retention of staff is notoriously difficult at the moment so many employers are trying to accommodate their employees and are offering flexible working. Where there has been a variation of terms, we would always advise formalising it. As an example, there may be a case where an employee is asked to return to the office full time, and even though it’s not in their contract argues that it’s an implied term they work from home on Fridays because they’ve done it for the past year and nobody has said anything.  If contract terms are set out in writing, it’s always much easier.

Contact our expert team, for more information or advice on Employment Law, for both individuals and businesses.

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And with employees now starting to make their return to the workplace whilst restrictions remain in place, it is a trend which is not only set to continue, but likely to escalate.

A protected disclosure is any disclosure of information which, in the reasonable belief of the worker making a disclosure, is made in the public interest and tends to show one or more ‘relevant failures’.¹

It falls within the Public Interest Disclosure Act 1998, whereby employees are fully within their rights to raise such concerns, particularly if they are concerned about their safety or safety of others.  

Indeed, it was created to encourage employees to highlight issues or a wrongdoing in the workplace without fear of being dismissed by their employers as a consequence, even if they have been employed less than two years.

Under the terms of the law, employees can claim unfair dismissal, irrespective of their length of employment, if they are made redundant or victimised following ‘blowing the whistle’ on serious issues within the workplace.  However, if employees are to receive the legal protection they are entitled to, it is important they understand what qualifies as a protected disclosure according to leading Coventry & Warwickshire solicitors Brindley Twist Tafft & James.

Currently common complaints are over whether a workplace is Covid safe and furlough fraud all of which are perfectly valid reasons however, as Kerry Hudson, Head of Employment at Brindley Twist Tafft & James points out, employees need to be fully aware of the process of ‘blowing the whistle’ before doing so to ensure they are protected.

Kerry Hudson explained: “There is a lot of confusion about what constitutes a protected disclosure.   It cannot simply be a passing comment and we have seen a number of cases where employees have thought they have made a protected disclosure and sought the benefit of that, only to find in fact it does not meet the requirements. 

“It is a situation which is happening all too often where employees who may not have acquired the minimum two years’ service bring a claim for unfair dismissal on the basis they have been dismissed for having made a protected disclosure (where you don’t have to have the two years) only to later realise that the disclosure did not qualify.

Conversely, employers dismissing an employee with less than two years in the belief they will not be able to bring a claim and not realising that if the dismissal was directly related to having made a qualified protected disclosure, in fact can.”

However, this begs the question what constitutes a protected disclosure. Essentially it is a passing on of information where the employee believes that the information disclosed shows a relevant failure or malpractice i.e. breach of a legal obligation such as danger to the health and safety of an individual and that any disclosure was made in the public interest.

Further, disclosures should only be made if the wrongdoing in the workplace is tangible.

Kerry Hudson continued: “Whilst every case will be judged on its individual merits, the general rule is that an employee must raise their concerns in writing (preferred) or verbally to their employer or another person of authority.  Complaining to fellow colleagues, customers or the press is extremely unlikely to provide an employee with the protection under the legislation. 

“Any employee is entitled to make a valid observation provided it has been done in the right way. Therefore, we urge employees to have a full understanding of their rights regarding protected disclosure, or seek professional advice, especially if they feel they have been made redundant or mistreated after highlighting an issue or wrongdoing in the workplace.”

BTTJ provides the best possible service to clients. It recently reinforced its position as one of the West Midlands’ leading law firms through the acquisition of well-known MacNamara King Solicitors with offices in Warwick, Balsall Common and Southam as well as Coventry.

1. Relevant Failures include: –

• A breach of any legal obligation (including regulatory obligations)
• A criminal offence
• Miscarriages of justice
• Danger to health and safety
• Damage to the environment
• Deliberate concealing of the above

Contact us for advice today

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A redundancy occurs where there is:

• a closure of a particular site or office or
• a closure of the whole business or
• a reduced need for workers to do a particular kind of work.

Watch the video below to find out more about redundancy and the issues that arise.

Some key things to consider are:

• If you have at least two years’ continuous employment, you will be entitled to a statutory redundancy payment.
• You will also have unfair dismissal rights – to successfully defend such a claim, your employer will need to show that there is a genuine redundancy situation and it has followed a correct consultation procedure before dismissing you for redundancy.
• If you are being made redundant and have less than two years’ service, you will not be eligible for a statutory redundancy payment.  You will also not be eligible to bring a claim for unfair dismissal on the grounds of redundancy (although there are some limited exceptions which we can explain to you).
• Selection for redundancy should not be motivated by a discriminatory reason such as sex, race, disability, age, sexual orientation, religion or belief, gender reassignment, marriage or civil partnership, pregnancy or maternity.  If it is motivated by such a reason, you can bring a claim for discrimination without any period of continuous employment.
• Where there are 20 or more employees being made redundant at one establishment over a period of 90 days or less, there are duties about information and consultation, including minimum consultation periods.  There may be a claim for a Protective Award in the Employment Tribunal if your employer fails to carry out these duties.
• Some employers will offer Settlement Agreements before or during a redundancy process.  You can find out more about Settlement Agreements by visiting our Settlement Agreement page.

If you would like to discuss a redundancy situation or you have been offered a Settlement Agreement, please contact our employment lawyer Kerry Hudson.

Kerry is an Employment Solicitor in Coventry and provides advice to employers and employees across the whole of the Coventry and Warwickshire area including Rugby, Nuneaton, Atherstone, Warwick, Leamington Spa and Kenilworth.

Please call 024 7653 1532 or email Kerry.Hudson@bttj.com

The post I’m being made redundant – what are my rights? appeared first on Brindley Twist Tafft & James.

Settlement Agreements are agreements which can be used to waive employment claims which you may have against your employer and are entered into between you and your employer. Usually this will involve the termination of your employment and a sum of money will be paid to you to settle (give up) your employment claims.

In which circumstances would I want to ask for a Settlement Agreement?

You may want to start the discussion about an agreed exit under a Settlement Agreement because, for example, your employer is calling you to a disciplinary meeting, alleging that you have committed gross misconduct. You may feel that it would be better to try to agree an exit with your employer, rather than having to explain a possible gross misconduct dismissal, without notice, to a future employer.

Alternatively, you may want to start the discussion because you feel that the working relationship is no longer tenable e.g. if you consider that you are being bullied or seriously undermined at work. In this situation, you could raise a grievance to try to resolve matters internally but if you have reached the stage whereby you feel that the relationship is so bad that you want to leave, then broaching a Settlement Agreement could be the preferable option.

What terms are there in a Settlement Agreement?

In addition to written terms about the settlement of claims and monies payable to you, the Settlement Agreement is also likely to include other terms e.g. you and the employer promise to keep the Agreement confidential and to refrain from making derogatory comments about each other.

Quite often, a reference will be included within the terms of the Settlement Agreement which your employer will agree to provide if a reference request is made by a future employer.

Do I need to take legal advice?

You will be required to take independent legal advice about the terms of the Settlement Agreement in order to validly settle your statutory employment claims. It is usual for your employer to pay a contribution towards your legal costs for taking this advice. We can advise you on the terms of the Settlement Agreement.

Can I negotiate on the terms of the Settlement Agreement?

You should be aware that you do not necessarily need to agree to the terms which are initially offered to you and sometimes your employer will be prepared to negotiate on the terms. You may prefer that we carry out such negotiations.

What are the advantages of entering into a Settlement Agreement?

Entering into a Settlement Agreement can result in a more satisfactory result than pursuing your claims in an Employment Tribunal as concluding a Settlement Agreement will give you a quicker and certain outcome.

It is advisable to seek legal advice about your position and you can then decide whether to broach the subject with your employer. If you wish to raise the subject, you can do this personally or you can ask us to write a letter on your behalf, setting out your potential claims which can be more effective.

What happens if a Settlement Agreement is not concluded?

Any discussion or correspondence about ending your employment on agreed terms should ideally be stated as being a “Confidential Discussion under Section 111A Employment Rights Act 1996”.

If you and your employer are unable to agree the terms of a Settlement Agreement, the Settlement offer and discussions cannot usually be referred to as evidence in any subsequent unfair dismissal claim (with some exceptions) but can be referred to in other claims. However, if there is already an existing dispute between you and your employer, any discussions to settle employment claims may be covered by the “without prejudice” rule; this means that they could not be revealed in any claims, whether unfair dismissal or otherwise.

If you would like to initiate discussions about an exit from your employment linked to a Settlement Agreement or if you have already been offered a Settlement Agreement, please contact our Employment Solicitor, Kerry Hudson on 024 7653 1532 or email at kerry.hudson@bttj.com.

The above is not intended to provide advice.

Kerry Hudson is an Employment Solicitor at Brindley Twist Tafft & James in Coventry. She specialises in Employment Law and is a trusted advisor to both employers and employees.

The post Can I ask for a Settlement Agreement from my employer? appeared first on Brindley Twist Tafft & James.

Settlement Agreements are agreements which can be used to waive employment claims which you may have against your employer. Usually this will involve the termination of your employment and a sum of money paid to you to settle (give up) your employment claims.

What terms are there in a Settlement Agreement?

 In addition to written terms about the settlement of claims and monies payable, the Settlement Agreement is also likely to include other terms e.g. you and the employer promise to keep the Agreement confidential and to refrain from making derogatory comments about each other.

Usually, a reference will be included within the terms of the Settlement Agreement which your employer will agree to provide if a reference request is made by a future employer.

Do I need to take legal advice?

You will be required to take independent legal advice about the terms of the Settlement Agreement in order to validly settle your statutory employment claims.  It is usual for your employer to pay a contribution towards your legal costs for taking this advice. We can advise you on the terms of the Settlement Agreement.

Can I negotiate on the terms of the Settlement Agreement?

You should be aware that you do not necessarily need to agree to the terms which are initially offered to you and sometimes your employer will be prepared to negotiate on the terms. You may prefer that we carry out such negotiations.

Once a valid Settlement Agreement has been signed, you will not be able to sue your employer for any claims referred to as settled in the Settlement Agreement.

What are the benefits of entering into a Settlement Agreement?

Entering into a Settlement Agreement can result in a more satisfactory result than pursuing your claims in an Employment Tribunal as concluding a Settlement Agreement will give you a quicker and certain outcome.

What happens if a Settlement Agreement is not concluded?

Any discussion or correspondence about ending your employment on agreed terms should ideally be stated as being a “Confidential Discussion under Section 111A Employment Rights Act 1996”.

If you and your employer are unable to agree the terms of a Settlement Agreement, the Settlement offer and discussions cannot usually be referred to as evidence in any subsequent unfair dismissal claim but can be referred to in other claims. However, if there is already an existing dispute between you and your employer, any such settlement discussions are likely to be covered by the “without prejudice” rule which means that they could not be revealed in any claims, whether unfair dismissal or otherwise.

If you are offered a Settlement Agreement or would like to start a discussion with your employer about an exit from your employment linked to a Settlement Agreement, please contact our Employment Solicitor, Kerry Hudson on 024 7653 1532 or email at Kerry.Hudson@bttj.com.

The above is not intended to provide advice.

Kerry Hudson is an employment solicitor in Coventry at Brindley Twist Tafft & James. She specialises in Employment Law and is a trusted advisor to both employers and employees.

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You will not usually be permitted to work or attend work premises, nor have contact with colleagues or customers which may make you feel isolated. You will probably not know, at least at the outset, the precise duration of the suspension.

Furthermore, your employer will still usually require you to be available to attend any investigation meeting or answer work queries during your suspension.

What does the law say about suspending employees?

There is not any legislation about suspension but there is ACAS guidance [click here to read this] on this area for employers. In addition, employers have a duty not to act in a way that would breach the implied contractual duty of trust and confidence with employees, nor to discriminate on the grounds of Protected Characteristics (sex, race, disability etc.).

The main points arising from the ACAS guidance are:

• an employer should only usually consider suspension for serious allegations of misconduct and only in certain circumstances e.g. if an employee could tamper with evidence or influence witnesses, working relationships have severely broken down etc.
• suspension should not be an automatic reaction by an employer to disciplinary allegations and other alternatives should be considered, such as the employee working from home, moving the employee to a different area of the workplace etc.
• there should be no assumption of guilt associated with suspension although it is noted that an employee can still feel that the suspension in itself has a damaging effect on their reputation.
• an employee should be informed in writing of their suspension which should set out the reasons for it, how long it is expected to last, the employee’s rights and obligations during this period etc.
• an employee should receive full pay during suspension unless there is a clear contractual right to suspend without pay.
• suspension should be kept as brief as possible and regularly reviewed. An employee should be kept regularly updated about their suspension, the reasons for it and how long it is likely to last.

If you consider that your employer has acted unreasonably in suspending you, you may have a claim for constructive unfair dismissal on the grounds of your employer’s fundamental breach of the implied contractual duty of trust and confidence. However, to be eligible to bring this claim, you normally need two years’ continuous service (although there are certain exceptions) and you would need to resign before you could make such a claim.

We would always suggest that you take legal advice before resigning in these circumstances as your potential claim may be weak and, in any event, resigning may not be the best tactical course of action for you.

An alternative to a resignation or facing a possible disciplinary hearing (particularly where gross misconduct is alleged) is to consider seeking an agreed termination of employment under a Settlement Agreement.

We are experienced in making these approaches to your employer, negotiating a financial package for you and advising upon the terms of a Settlement Agreement under which you settle your employment claims. Please click here to see more information on settlement agreements. 

If you would like to discuss your situation at work with our Employment Solicitor, Kerry Hudson, email her at Kerry.Hudson@bttj.com or reach her at our Coventry office on 024 7653 1532.

The above is not intended to provide advice.

The post I have been suspended from work. What are my rights? appeared first on Brindley Twist Tafft & James.

• Liability for employee actions – vicarious liability
• Gig economy
• Age discrimination
• Payslips
• Increases

Liability for employee actions

Bellman v Northampton Recruitment Limited

The Managing Director of a company physically attacked one of the employees in an unscheduled drinking session after the end of the Christmas party. The attack caused brain damage to the employee.

The issue to be determined by the court in this case, was whether the company was vicariously liable for the actions of the Managing Director. The court held that the company was not liable but the employee appealed.

The Court of Appeal allowed the employee’s appeal. It found that the Managing Director who owned the company was its most senior employee and directing mind and had full control over how he conducted his role. When he lectured staff at the drinks session at which the attack took place, he was still acting as Managing Director. Furthermore the drinks session was not a purely social event but followed on from the Christmas party organised by the employer.

WM Morrison Supermarkets Plc v Various Claimants

In this case, an employee of Morrisons, a senior IT internal auditor (Mr S) was asked to send data to Morrisons’ external auditors.

However, the employee shared employees’ personal data online and disseminated a copy of that data to three national newspapers as he had a grudge against Morrisons.

Employees of Morrisons sought to hold the company liable for his actions. The Court of Appeal agreed with the High Court that Morrisons was vicariously liable for the criminal activities of its former employee, Mr S. It held that his actions were within the field of activities assigned to him by Morrisons. Furthermore, Morrisons could be vicariously liable even where the intention of the employee committing the relevant act was to harm his employer.

Gig economy

There has now been a number of high profile cases in which the courts have held that “freelancers” are workers, including those relating to Uber, Pimlico Plumbers and Addison Lee.

Workers have certain rights which self-employed individuals do not benefit from. Whilst workers do not have all the rights of employees (who have the greatest rights), they do have some significant entitlements, such as the rights to the National Minimum Wage and to paid annual leave, amongst others. Employers should take advice when there is any doubt as to the status of such persons otherwise they may be faced with claims, possibly only at a later stage.

Age discrimination

Age is one of nine features known as “protected characteristics” under the Equality Act 2010. Generally, a job applicant, an employee or worker is protected against discrimination because of age. This includes protection against unfair treatment due to age, because they are thought to be a particular age or because they associate with someone belonging to a particular age group.

Discrimination claims can be brought without any minimum length of employment (or indeed, any employment at all, in the case of a job applicant).

ACAS has recently published a guide on Age discrimination, as well as factsheets relating to age discrimination, setting out ten obligations for employers and top ten myths about age discrimination.  Please click here to see the guide and factsheets. 

Payslips

From 6 April 2019, the legal right to a payslip will be extended to workers, not just employees.

Employers will also be required to include the total number of hours worked on payslips for employees and workers whose wages vary depending on how much time they have worked. The new right applies to payslips covering pay periods which begin on or after 6 April 2019.

Increases

From April 2019, there will be increases in the National Living Wage, National Minimum Wage, Statutory Sick Pay and payment for family friendly leave.

If you have any employment law queries, please contact Kerry Hudson on Kerry.Hudson@bttj.com or 02476 531532.

This Update is not intended to provide advice.

The post Employment Law Update 2019 appeared first on Brindley Twist Tafft & James.

Perhaps you have been asked to sign one because your employer wants to terminate your employment in exchange for a sum of money?

Some things for you to consider are:

• Giving up employment claims
• Confidentiality
• References
• Requirement of independent legal advice
• Getting a fair deal

If you need advice on a settlement agreement please give me a call on 02476 531532 or email me at Kerry.Hudson@bttj.com

About the author

Kerry Hudson is an employment solicitor at Brindley Twist Tafft & James in Coventry. She specialises in Employment Law and is a trusted advisor to both employers and employees.

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The main steps of Disciplinary Proceedings could include:

• Investigation
• The invitation to the disciplinary hearing
• The disciplinary hearing itself
• The outcome of the hearing
• Appeal following the outcome

If you need help either during the disciplinary process or following a disciplinary outcome, please give me a call on 024 7653 1532 or email me at Kerry.Hudson@bttj.com

About Kerry

Kerry Hudson is an employment solicitor at Brindley Twist Tafft & James in Coventry. She specialises in Employment Law and is a trusted advisor to both employers and employees.

The post What are Disciplinary Proceedings appeared first on Brindley Twist Tafft & James.