28.03.2024
1. How should we deal with competing flexible working requests?
It can be difficult to know how to deal with multiple statutory requests for flexible working and employers may find themselves facing the dilemma of dealing with competing requests more frequently once the right to request flexible working becomes available from day one (from 6 April, see here).
Unfortunately ACAS guidance in this area is limited. There is no “one size fits all” response for how best to deal with competing requests or requests which are affected by previous flexible working requests from other employees. That said, the points outlined below will give you a feel for some issues to bear in mind when you are considering whether to agree to a flexible working request in these circumstances.
Firstly, the updated ACAS Code of Practice on requests for flexible working (which is due to come into effect from April 2024, see here) stresses the importance of employers being open minded and taking a constructive approach when considering flexible working applications. You should approach each request with fresh eyes, and your default position shouldn’t be to say no, even if you are handling more requests than before.
It is important to avoid any policy or mentality (either spoken or unspoken) of only allowing a finite capacity of flexible working requests to be approved. Don’t draw a line in the sand and assume you have reached saturation point with flexible working requests. This is especially the case for roles where homeworking is an option. You might think that you cannot accommodate a new request, but if you are minded to refuse a request, be clear about why it is not feasible and check that you can rely on at least one of the eight legitimate statutory bases of refusal. Assessing discrimination risks should also play a part in your decision making. It is important to consider each situation on its facts and avoid imposing blanket policies.
You should assess each request based on relevant circumstances at the time you receive it, which may include taking into account the impact of other flexible working arrangements you have previously agreed. It is a good idea to carry out a risk assessment when doing this; the Make UK Form - impact assessment: flexible working request in Family rights and flexible working downloads is designed to help you identify whether you can agree a request, or whether you have one of the eight legitimate reasons to refuse it.
If you genuinely have a statutory reason to refuse the new request, even if this is in part due to previously granted requests, then you are entitled to do this. However, given your obligation to deal with requests in a “reasonable manner”, it is often useful to have a conversation with those people who already work flexibly to see whether they can help towards accommodating new requests. If flexible working arrangements are already written into their contract, they will not be obliged to change their terms, but it generally doesn’t hurt to ask the question and they may be able to help you achieve a compromise. Keep in mind that this approach may raise confidentiality issues and its appropriateness will depend on the individual circumstances.
Handling competing requests is not easy and the best route forward will depend on the precise circumstances, so it may be helpful to discuss your specific situation with an employment law expert to help limit the risk of legal claims. If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information (including our Policy – flexible working (and application form)) in the Family rights and flexible working section of our website. You may also find it useful to watch our free flexible working webinar, “Handling flexible working requests: getting to grips with the new rules”, see here.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources or purchase our pack of essential flexible working documentation. Please click here for information on how we can help your business.
Unfortunately ACAS guidance in this area is limited. There is no “one size fits all” response for how best to deal with competing requests or requests which are affected by previous flexible working requests from other employees. That said, the points outlined below will give you a feel for some issues to bear in mind when you are considering whether to agree to a flexible working request in these circumstances.
Firstly, the updated ACAS Code of Practice on requests for flexible working (which is due to come into effect from April 2024, see here) stresses the importance of employers being open minded and taking a constructive approach when considering flexible working applications. You should approach each request with fresh eyes, and your default position shouldn’t be to say no, even if you are handling more requests than before.
It is important to avoid any policy or mentality (either spoken or unspoken) of only allowing a finite capacity of flexible working requests to be approved. Don’t draw a line in the sand and assume you have reached saturation point with flexible working requests. This is especially the case for roles where homeworking is an option. You might think that you cannot accommodate a new request, but if you are minded to refuse a request, be clear about why it is not feasible and check that you can rely on at least one of the eight legitimate statutory bases of refusal. Assessing discrimination risks should also play a part in your decision making. It is important to consider each situation on its facts and avoid imposing blanket policies.
You should assess each request based on relevant circumstances at the time you receive it, which may include taking into account the impact of other flexible working arrangements you have previously agreed. It is a good idea to carry out a risk assessment when doing this; the Make UK Form - impact assessment: flexible working request in Family rights and flexible working downloads is designed to help you identify whether you can agree a request, or whether you have one of the eight legitimate reasons to refuse it.
If you genuinely have a statutory reason to refuse the new request, even if this is in part due to previously granted requests, then you are entitled to do this. However, given your obligation to deal with requests in a “reasonable manner”, it is often useful to have a conversation with those people who already work flexibly to see whether they can help towards accommodating new requests. If flexible working arrangements are already written into their contract, they will not be obliged to change their terms, but it generally doesn’t hurt to ask the question and they may be able to help you achieve a compromise. Keep in mind that this approach may raise confidentiality issues and its appropriateness will depend on the individual circumstances.
Handling competing requests is not easy and the best route forward will depend on the precise circumstances, so it may be helpful to discuss your specific situation with an employment law expert to help limit the risk of legal claims. If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information (including our Policy – flexible working (and application form)) in the Family rights and flexible working section of our website. You may also find it useful to watch our free flexible working webinar, “Handling flexible working requests: getting to grips with the new rules”, see here.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources or purchase our pack of essential flexible working documentation. Please click here for information on how we can help your business.
2. Is the Government still planning a Code of Practice on “fire and rehire”?
Yes, the Government recently published its response to the consultation on the draft statutory Code of Practice on Dismissal and Re-engagement, together with an updated version of the Code (see here). Next, the updated draft will be laid before Parliament for approval and is expected to be in force from Summer 2024.
The new statutory Code, which the Government initiated in the wake of the redundancies undertaken by P&O Ferries without consultation or notice in Spring 2022, aims to address the practice of "fire and rehire" (i.e. where employers force through changes to employees' terms and conditions of employment by terminating employment and offering re-engagement on inferior terms). It does not ban the process, but sets out some parameters as to how it can be operated more fairly.
The Code applies when the employer is considering dismissal and re-engagement (or redundancy and dismissal and re-engagement in respect of the same employees), but not where just redundancies are envisaged. It makes clear that employers should not use threats of dismissal as a negotiating tactic. The draft Code states that “once it has become clear to the employer that employees and/or their representatives do not agree to some or all of the contractual changes which [the employer] has proposed, but the employer considers that it still needs to implement the changes, the employer should re-examine its proposals”. The Code lists various factors the employer should take into account when determining how to proceed.
Although a failure to follow the Code will not, in itself, make a person or organisation liable to employment tribunal or court proceedings, tribunals/courts will be able to uplift any compensation awarded by up to 25% where an employer has unreasonably failed to follow the Code.
Our employment experts will be discussing this topic further at our popular Spring Employment Law Updates (see here to book your place).
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information in the Changing employment terms and conditions and Termination of employment sections of our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
The new statutory Code, which the Government initiated in the wake of the redundancies undertaken by P&O Ferries without consultation or notice in Spring 2022, aims to address the practice of "fire and rehire" (i.e. where employers force through changes to employees' terms and conditions of employment by terminating employment and offering re-engagement on inferior terms). It does not ban the process, but sets out some parameters as to how it can be operated more fairly.
The Code applies when the employer is considering dismissal and re-engagement (or redundancy and dismissal and re-engagement in respect of the same employees), but not where just redundancies are envisaged. It makes clear that employers should not use threats of dismissal as a negotiating tactic. The draft Code states that “once it has become clear to the employer that employees and/or their representatives do not agree to some or all of the contractual changes which [the employer] has proposed, but the employer considers that it still needs to implement the changes, the employer should re-examine its proposals”. The Code lists various factors the employer should take into account when determining how to proceed.
Although a failure to follow the Code will not, in itself, make a person or organisation liable to employment tribunal or court proceedings, tribunals/courts will be able to uplift any compensation awarded by up to 25% where an employer has unreasonably failed to follow the Code.
Our employment experts will be discussing this topic further at our popular Spring Employment Law Updates (see here to book your place).
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information in the Changing employment terms and conditions and Termination of employment sections of our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
3. What minimum salary threshold will apply for Skilled Workers from April 2024?
From 4 April 2024, the minimum general annual salary threshold for most roles sponsored under the Skilled Worker route will increase from £26,200 to £38,700. For further details about immigration and employment law changes which are due to take effect from April 2024, see our e-alert. In addition, our experts will explore these topics at our popular Spring Employment Law Updates (see here to book your place).
4. What is “bumping”?
The term ‘bumping’ is typically used in the context of redundancies. ‘Bumping’ dismissals occur where an employee who is potentially redundant (Employee A) is redeployed to another existing job and the employee in the existing job (Employee B) is the one who is actually dismissed for redundancy. Although there is no reduced requirement for Employee B's job, their dismissal is due to redundancy because the dismissal has been brought about by the reduced requirement for a particular kind of work, i.e. the work previously done by Employee A.
There is no general obligation on an employer to consider bumping, but in some circumstances it may be unreasonable not to do so. We therefore recommend that, if you are an employer who is considering making redundancies, you think seriously about whether bumping is appropriate, as a failure to consider it might make a dismissal unfair. It is advisable to record the fact that you have considered bumping as an option and the rationale for whatever decision you have made. As part of your considerations, various factors will need to be taken into account, for example: how different the two jobs are (including the difference in remuneration between the two jobs); the relative length of service of the two employees; and the qualifications of the employee at risk of redundancy.
Sometimes, a potentially redundant employee will raise the question of bumping themself. However, there is case law indicating that the fact that an employee has not raised it does not necessarily mean that you do not need to consider it.
Often, employers will prefer not to bump, as it can be detrimental to employee relations and can complicate what might otherwise be a more straightforward redundancy process. That said, it is important not to overlook the fact that bumping will sometimes provide business benefits and might be something that you want to implement, particularly where a highly skilled employee's role is being eliminated and they are happy to downgrade.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about redundancies, including template policies and drafting guidance, in the Redundancies section of our HRL Resources.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
There is no general obligation on an employer to consider bumping, but in some circumstances it may be unreasonable not to do so. We therefore recommend that, if you are an employer who is considering making redundancies, you think seriously about whether bumping is appropriate, as a failure to consider it might make a dismissal unfair. It is advisable to record the fact that you have considered bumping as an option and the rationale for whatever decision you have made. As part of your considerations, various factors will need to be taken into account, for example: how different the two jobs are (including the difference in remuneration between the two jobs); the relative length of service of the two employees; and the qualifications of the employee at risk of redundancy.
Sometimes, a potentially redundant employee will raise the question of bumping themself. However, there is case law indicating that the fact that an employee has not raised it does not necessarily mean that you do not need to consider it.
Often, employers will prefer not to bump, as it can be detrimental to employee relations and can complicate what might otherwise be a more straightforward redundancy process. That said, it is important not to overlook the fact that bumping will sometimes provide business benefits and might be something that you want to implement, particularly where a highly skilled employee's role is being eliminated and they are happy to downgrade.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about redundancies, including template policies and drafting guidance, in the Redundancies section of our HRL Resources.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
5. How much information can we share about an employee in a mental health emergency?
The Information Commissioner’s Office (ICO) has recently published guidance aimed at giving employers greater certainty about sharing information about their workers in the event of a mental health emergency (see here). While acknowledging that it can be difficult to recognise a mental health emergency (compared with a physical health emergency), the guidance defines a mental health emergency as a situation ‘in which you believe that someone is at risk of serious harm to themselves, or others, because of their mental health’. This can include the potential loss of life.
The guidance confirms that during a mental health emergency where there is risk of serious harm to the worker or to others employers should share necessary and proportionate information without delay with relevant and appropriate emergency services or health professionals. Employers can also share necessary and proportionate information with a worker’s next of kin or emergency contact. It explains that the focus should be on sharing information with the right people to protect the person involved or others from serious harm.
While the ICO offers comfort to employers that they will not get into trouble for sharing necessary and proportionate information with relevant and appropriate emergency services or health professionals, the guidance also recognises that an employer will not necessarily always know the exact nature of the relationship with the next of kin or emergency contact. It may not always be inappropriate therefore to share all the information an employer has.
Employers are encouraged to use their judgement in each specific situation, sharing only what is necessary and proportionate to the circumstances. It is important to consider too whether your ability to share health information is subject to other legal constraints outside of data protection law (for health information, this may include any duty of confidence that may apply, particularly where workers may expect confidentiality).
The guidance includes information for employers about the lawful basis and special category condition which are most likely to apply in a mental health emergency from a data protection perspective, as well as tips on how they can plan ahead.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information in the Employee data and monitoring section of our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
The guidance confirms that during a mental health emergency where there is risk of serious harm to the worker or to others employers should share necessary and proportionate information without delay with relevant and appropriate emergency services or health professionals. Employers can also share necessary and proportionate information with a worker’s next of kin or emergency contact. It explains that the focus should be on sharing information with the right people to protect the person involved or others from serious harm.
While the ICO offers comfort to employers that they will not get into trouble for sharing necessary and proportionate information with relevant and appropriate emergency services or health professionals, the guidance also recognises that an employer will not necessarily always know the exact nature of the relationship with the next of kin or emergency contact. It may not always be inappropriate therefore to share all the information an employer has.
Employers are encouraged to use their judgement in each specific situation, sharing only what is necessary and proportionate to the circumstances. It is important to consider too whether your ability to share health information is subject to other legal constraints outside of data protection law (for health information, this may include any duty of confidence that may apply, particularly where workers may expect confidentiality).
The guidance includes information for employers about the lawful basis and special category condition which are most likely to apply in a mental health emergency from a data protection perspective, as well as tips on how they can plan ahead.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information in the Employee data and monitoring section of our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.