In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
The previous conditions of having to demonstrate caring responsibilities will no longer apply meaning that the extent and breadth of reasons for requests from your workforce can be predicted to increase. The existing 8 grounds for refusing a request will continue to apply.
ACAS has produced a draft Code of Practice and non-statutory guidance on the extended right to request flexible working. The guidance recommends employers document how to prioritise competing requests in a flexible working policy. However, employers need to think carefully before doing this because a “one size fits all” approach might unnecessarily restrict their decision making in the future.
In our view, the key issue in dealing with more requests will be managing competing interests, particularly where the refusal of a request carries with it the risk of a discrimination claim. How do employers, therefore, prioritise requests where one of these is received from someone who has a protected characteristic under the Equality Act? In our view it will be important not to apply a blanket policy that, for example, grants all requests where they are made by employees on maternity leave or that give priority to those with a protected characteristic. We emphasise that the approach needs to be one of balance considering each case on its own merits but taking into account any disadvantage someone may suffer as a result of their protected characteristic if a request is not granted. Your flexible working policy should make it clear that granting flexible working for one employee should not be seen as setting a precedent for another employee to work flexibly.
We also consider that giving blanket acceptance to requests you feel can be accommodated should be avoided. We consider it is better to attach conditions. For example, having a 6 month trial period or making it clear that the request is subject to continuing to deliver particular business objectives and reserving the right to change the arrangements if those objectives are not achieved.
Further, how far could refusing to grant a flexible working request become a failure to make reasonable adjustment for a disabled person? In a recent case, the Court of Appeal confirmed that the duty to make reasonable adjustments only applies to disabled employees and any not to an employee who is associated with a disabled person. This will be helpful for employers in considering requests from those who wish to work flexibly to care for a disabled family member, for example, but will not reduce the duty on employers to carefully consider a request as a possible reasonable adjustment where the employee themselves is a disabled person.
The key steps employers should consider to prepare themselves for dealing with requests are:
- Prepare appropriate guidance and training to managers on the obligation to consider requests reasonably;
- Decide what procedure will be followed in the event of a flexible working application being received. If there is not already one in place, employers should consider introducing a policy for handling flexible working requests. This aids with consistency and transparency;
- Consider amending existing flexible working policies to reflect the extended right to request flexible working; and
- When granting requests, attach conditions such as a trial period or make it subject to delivering particular business objectives.
For more information
For further information on the impact of the legislation on your organisation, or for further assistance in relation to flexible working requests, please contact Kate Watkins on 0121 212 7494 or email email@example.com.
A local authority recently received a "roasting" by the Pensions Ombudsman for their delay in processing an employee’s ill-health retirement pension, following her diagnosis with advanced cancer.
The Times is looking for three or four charities to feature in their editions running in December 2019 and early January 2020.
Cliff Mills defines and talks about the importance of social value in his blog, and its potential within Greater Manchester.
Following a power outage at Anthony Collins Solicitors’ (ACS) Birmingham office, our employees and partners currently have limited functionality, including no access to emails.
Joint ventures present an opportunity for housing associations to build organisational capacity, the revenues from which could help deliver on wider social housing commitments.
Residents are now unable to make applications to prohibit landlords from seeking to recover the cost of legal proceedings through the service charge on behalf of other residents, without consent.
Natalie Barbosa summarises some of the legal challenges facing fundraisers in the charity sector.
We hosted a breakfast roundtable with Insider Midlands magazine that had attendees from a range of organisations addressing housing needs in the Midlands. The discussion explored JVs in more detail.
The decision of the Court of Appeal in The Harpur Trust v Brazel & Unison has made clear that employers can no longer legally calculate part-time holiday based on 12.07% of hours worked over a year.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.