1. Employee request for flexible working
Denise owns a small software company. She has six members of staff who all work full-time, 9 to 5, in the office. She currently takes care of sales and marketing herself and leaves most of the technical work to her team. Her business has grown rapidly in the 3 years that she has been operating and she believes that so far she has managed quite well to keep on top of employment matters using various online resources.
One of her employees, Dave, has taken some odd days from his annual leave entitlement recently to help his elderly father attend various hospital appointments. His father has osteoporosis and is finding it increasingly difficult to manage to look after himself at home.
Dave pops into Denise’s office today and tells her that he has agreed with his wife that Dave’s father will move in with them both in the near future. Dave’s wife works part-time and will look after his father when not at work. Dave wants to reduce his hours so that he will be able to look after his father when his wife is unable to. He gives Denise a letter setting out the details of his request.
Denise is not sure what to do. The business is growing and she cannot afford to lose the hours that Dave is proposing to drop. She knows that it would be hard to replace those hours by recruiting a new part-time member of staff as most people in the industry are the main bread winners in the household, who are looking for full-time work. She is minded to refuse Dave’s request but thinks that she might then find that he becomes unreliable if he needs to take time off at short notice when his father needs him. It may be that Dave chooses to leave the company. He is only a few years from retirement, he has paid off his mortgage and his children left home a few years ago to start on their own careers. Denise is worried about losing Dave’s skills and knowledge.
Comment: All employees now have the right to request to work flexibly. Initially it only applied to parents, then it was extended to carers, and now it applies to all who meet a minimum service criterion.
In order to comply with the Flexible Working Regulations, Denise should first check what Dave has written to see if it complies with the employee’s duties as set out in the Regulations. The onus is on Dave to state in his letter what impact he believes his reduction of hours will have on the business and to propose any arrangements which could offset any detriment. If he has not done so, Denise could explain this requirement to Dave and ask him to resubmit his request when he has done so. This is a good tactic because it will force Dave to consider the problems his proposal will have for Denise. He may well propose a different arrangement, such as working from home part of the time or varying his working hours, which may have a lesser impact.
Once Dave has submitted his request in the required form, Denise needs to give it due consideration. Denise needs to arrange to meet with Dave (and a companion if he chooses to bring one) to discuss his request. It may be that Denise can negotiate a different variation with Dave at the meeting if his proposal is going to prove problematic.
If Denise is not able to agree to Dave’s request she needs to ensure that her reason for this decision falls into one or more of the following business reasons:
• Burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to reorganise work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work
• Planned structural changes
If Denise does refuse the request she needs to give Dave in writing the reason for her refusal and notify him that he has the right to appeal this decision.
As Denise is concerned about losing Dave, she may wish to agree to his request on a trial basis. She may be able to propose an alternative arrangement that would be acceptable to Dave. It may be that she can advertise for a part-time replacement to test her assumption that it would not be attractive to potential recruits before coming to a final decision (the subsequent delay in the procedure would need to be agreed with Dave first). As Denise’s company continues to expand it is likely that she will encounter more such issues from members of her staff. Part-time and other forms of flexible working may prove to be popular among her new and existing staff members, so she would do well to consider promoting such forms of working whenever advertising for new staff. It is normally easier to accommodate changes to working patterns when there are already a number of staff members working part-time.
If you face a similar situation and would like some help dealing with it, please contact us for a free trial consultation meeting.
2. Gross misconduct and maternity
Paul runs a busy coffee shop and has a number of part-time staff who wait on tables and work behind the counter. In recent weeks he has found that the takings each day do not tally with the receipts and he is short by a couple of hundred pounds. All the staff members have access to the till and are in and out of it regularly.
Paul has told all his staff that money has gone missing and he suspects one young woman, Clare, who appeared quite agitated when he mentioned it to her. Another member of staff, Sue, has taken Paul aside and told him that she saw Clare acting suspiciously recently when she was ringing an order into the till. She said that Clare became flustered when Sue walked up behind her when she had the till drawer open and it looked like Clare had a hand in her pocket. When Sue asked her what she was doing, Clare said that she was checking to see if they needed change. Sue said that this had just made her more suspicious because Clare had seen Sue topping up the change just half an hour previously. Sue also told Paul that another staff member had told her that Clare had been showing off some new CDs and clothes that she had bought recently in her lunch break, saying that she had come into some money.
Paul asked Clare to meet him in his office the following day and told her that he wanted to talk to her about the missing money. Clare had become very flushed and agitated when Paul spoke to her. She has now come back to Paul and told him that she is pregnant and will need to take maternity leave towards the end of the year.
Paul is very worried. He wants to deal with the missing money issue and, if she has been stealing it, dismiss Clare. But he has heard so many horror stories about pregnant employees suing their employers for thousands of pounds when they have been dismissed and he is concerned that he has no proof of her guilt.
Comment: Now that Clare has informed Paul that she is pregnant he does need to be very careful to ensure that he treats her appropriately and in a non-discriminatory manner. He needs to assess whether there is any risk to her health or that of her unborn child of continuing to work as normal. He also needs to allow her paid time off to attend antenatal classes.
However, the fact that Clare is pregnant does not have any bearing on Paul’s need to deal with the apparent theft of money. If Paul conducts a thorough investigation and follows a fair and reasonable disciplinary procedure before dismissing Clare for gross misconduct, he should be able to successfully defend any claim of unfair dismissal and/or sex discrimination. It is important that Paul keeps an open mind during the process and looks out for any other explanation for the missing money (including whether another member of staff could have stolen it). Paul does not need to have hard proof of the theft but he does need to have a reasonable belief in Clare’s guilt, taking into consideration all the available evidence, if he decides to dismiss her.
If you face a similar situation and would like some help dealing with it, please contact us for a free initial conversation.
3. Long term sickness absence
Janice is the MD of a company manufacturing automotive parts. She has 25 employees, most of whom have been working for the organisation for many years. One of her employees, Frank, has been off sick for 3 weeks and has been in hospital for most of that time undergoing a series of tests. Cancer is suspected.
Janice is very concerned about Frank. She has agreed to continue paying him sick pay at the rate of full pay for the time being but she has had to take on a temp to help cover his work and the extra cost is starting to hurt. However, she doesn’t want to make things worse for Frank by reducing his pay when he is so vulnerable. If cancer is diagnosed, Janice thinks it is unlikely that Frank will be able to return to work; she does not know what she would need to do in the circumstances. Whilst Frank is a long-serving and very hard-working employee, she cannot afford to carry him for an extended period. She is worried also about any employment law implications.
Comment: Dealing with long-term sickness absence is never easy. Not only do you have the worry of a potentially close colleague or friend being seriously ill, but you also have the added difficulty of what to do about their pay and employment in general.
Payment for extended periods of absence depends very much on whether or not you give your employees any contractual sick pay. If not they will normally be entitled to up to 28 weeks’ Statutory Sick Pay (£88.45 from 6 April 2015). You could always pay more than that on a discretionary basis but you should exercise some caution if you do so as you could be setting a precedent.
Once someone is diagnosed as having cancer they are officially classified as disabled under the Equality Act. This means that you should avoid making any assumptions about their ability to work and base any decisions about their employment on medical opinion in consultation with the employee. You would need to consider whether there are any adjustments to their work that you could reasonably make as part of that consultation.
If someone remains off sick for an extended period you may want to terminate their employment so that you can find a replacement for them. That is perfectly understandable and the law recognises that this can be a fair reason for dismissal. However, it is very important that you follow an appropriate procedure before dismissing your employee. This would include obtaining a medical report or reports, discussing the possibility of a return to work with your employee throughout a period of consultation, and ensuring that termination is the only real option in the circumstances.
Unfortunately there are many potential pitfalls for an employer dealing with a case of long-term absence. So often it can go wrong if the process is rushed or if every alternative to dismissal has not been fully considered.
If you face a similar situation and would like some help dealing with it, please contact us for a free initial conversation.
4. A Recruitment Mistake
Alice runs a successful children’s nursery and has 25 employees. She has only been operating for 3 years and the business has grown quickly. She has carried out all the recruitment herself and has done well in her selection, which has been based mainly on gut instinct following a brief informal interview. Recently, however, she thinks she may have made a mistake.
Alice took on a new staff member, Nicky, a month ago and it is not going well. Nicky is often late arriving for work, she has had 3 odd days off sick already, and she seems to spend a lot of time sending text messages when she is at work. Alice is concerned that the nursery has come close to breaching Ofsted rules on staff/child ratios on a couple of occasions, only just managing to get by because of her other staff members’ goodwill in putting in extra hours at short notice. Alice has also heard through the grapevine that Nicky was sacked from her last job as a nursery assistant.
Alice has taken Nicky aside twice to tell her that she needs to make more of an effort to arrive on time, that she expects to see an improvement in her absence record and that she should avoid using her mobile at work. It does not seem to have made any difference though as Nicky has arrived late again today and her supervisor has complained to Alice that Nicky has received and responded to at least 5 texts since she arrived. Alice thinks she needs to dismiss Nicky. However, she is nervous because Nicky told her in her interview that she is dyslexic and Alice has heard that dyslexia is a disability and that she might face a discrimination claim.
Comment: Sometimes it can be clear that an appointment was a recruitment mistake and that no amount of supervision, training or reprimanding will fix it. In such circumstances it can often be best for all parties if the contract is terminated without delay.
As long as employees are given the appropriate amount of notice, they would normally not be able to bring any claim against dismissal if they have less than two years’ service. However, they do not need two year’s service in order to bring a discrimination claim. Alice may seem over-cautious to be concerned about Nicky’s dyslexia when the problems are to do with her lateness, attendance and conduct at work. However, it is as well to follow a basic dismissal procedure in these circumstances so that the reason for dismissal is clearly set out and can be shown to be unrelated to her dyslexia. If Nicky did try to claim that her dismissal was related to her dyslexia, Alice would be able to show that this was not the case as she would have evidence (in the form of letters and minutes) to demonstrate why Nicky had been dismissed.
There are a couple of other learning points for Alice: a more structured approach to recruitment may have helped avoid this situation. By focusing on the skills, qualifications and aptitude of candidates in relation to the requirements of the role, Alice would have ensured that she considered only the best applicants. By following up on references and qualifications, Alice could have discovered that Nicky was a potential problem. Also, the use of mobile phones can cause problems in many workplaces and it is not uncommon for employers to have rules about their use. Alice could introduce a mobile phone policy for her nursery which would restrict their use whilst in charge of the children. If she made sure new starters were aware of this rule at the outset it would make enforcing it a much more natural process.