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Dear Reader,
Some important changes to employment law will commence in April: an extension to the right to request flexible working and the repeal of the statutory disciplinary and grievance procedures. This month I provide an overview of both and give you a timely warning about the dangers of witholding "discretionary" bonuses.
Please contact me if you would like to find out a bit more about these issues. If you need any help or advice why not take advantage of my free initial consultation.
Please forward this email to any of your contacts who might find it of benefit.
Regards
Peter Etherington
Tel: 01664 430373
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| Are you flexible? |
| More employees able to request flexible working |
From 6 April, the right to request flexible working is being extended to parents of children up to 17 years old. Currently only parents of children under 6 have this right, as well as carers of adults. Parents of disabled children retain this right until the child's 19th birthday.
The right allows employees to make a request to change the way they work. This could be to change a working pattern, to reduce their hours of work, to work from home, to job share, to work term-time only, etc. Employers are able to refuse these requests as long as the reason for refusal falls within the list of business grounds which are prescribed under the legislation. Employers also need to ensure that they follow the correct statutory procedure when considering requests for flexible working.
In some cases, flexible working can be of benefit to employers, particularly in a downturn when staffing costs may be out of kilter with turnover. If you deal with requests with an open mind and manage to agree to a change which benefits both you and your employees, it is more likely that you will retain good relations with your employees. You could also find that the business benefits through reduced or more controlled staffing costs.
See my case studies for an example of an employer facing a difficult flexible working request from a key employee. |
| How do you ensure you dismiss staff fairly? |
| Statutory procedures repealed - a new Acas Code of Practice applies |
The statutory dismissal procedures are being repealed with effect from 6 April and instead, employers will need to follow the newly revised Acas Code of Practice on Disciplinary and Grievance Procedures. In some respects this is good news for employers, as the statutory procedures were very rigid and could be difficult to follow. The Acas Code is much lighter touch and less prescriptive. However, this lack of certainty means that there is likely to be some vagueness about unfair dismissal whilst employment tribunals get used to the new regime and we see how they apply tests of fairness in relation to dismissal.
Whilst employers do not have to follow the Acas Code in quite the same way that they had to follow the statutory procedures, tribunals are obliged to take the Code into account when considering relevant cases of alleged unfair dismissal. They can increase any awards by up to 25% for failure to comply with the Code.
Unlike the statutory procedures, the Acas Code does not apply to redundancy dismissals. However, employers still need to follow a fair procedure to avoid unfair dismissal claims.
If you are considering dismissing staff - whether due to redundancy or for any other reasons - please contact me for advice. |
| How discretionary is a discretionary bonus? |
| Employees have the contractual right to bonuses described as discretionary |
It seems amazing that banks are continuing to pay bonuses to their staff when they are losing money. However, in many cases there is no link between the overall profitability of a business and the targets that employees need to meet for bonuses to be paid. Companies that try to withold discretionary bonuses are finding that the mere use of the word "discretionary" when describing a bonus scheme is not enough.
In the recent case of Small v The Boots Co Plc and Boots UK Ltd, the Employment Appeal Tribunal found that the way the word "discretionary" was used in descriptions of the bonus scheme was ambiguous. It wasn't clear whether discretion applied to the amount of any bonus, the way it would be calculated, or whether it should be paid at all. In such cases where ambiguity is highlighted, the benefit of doubt is normally given to the employee. In this case, the bonus had invariably been paid to staff for many decades, which indicated to the tribunal that there was no discretion to withold it completely.
It is very important when drafting terms and conditions of employment, or even non-contractual documents, such as bonus schemes, that the words used are clear and unambiguous. This case highlights the need for employers to have their employment documentation reviewed regularly as poorly worded documents can lead to costly consequences. |
