Employment Law Update

This update considers the following:

  • The right to request flexible working
  • Increases to the National Minimum Wage

The right to request flexible working

Prior to June 2014 only certain categories of employees had the statutory right to request flexible working: parents of children under 17 years (18 years if the child was disabled), and those who cared for an adult.  The right to request flexible working now applies to all employees who have been working for their employer for at least 26 weeks, and they can ask to work flexibly for any reason.  Those who have been employed for less than 26 weeks, agency workers and office holders do not have a statutory right to request flexible working.

The right to request flexible working is governed by the Employment Rights Act 1996 and as such, an employee’s request must be in writing and must include certain information, such as how they would like their working conditions to change, and when the change would come into effect.  In addition, the employee has to consider and state what effect (if any) they believe their request will have on their employer and its business.

It is very important that the employee includes all necessary statutory information in their request – we recommend that employees take legal advice before the request is given to their employer.

flexible working requests

Employees can only make one request to change their working conditions in any 12 month period; employees should therefore be certain that the change to their working conditions would not cause them difficulty – if the employer grants their request and the employee subsequently wants to return to their pre-request working conditions, they will not be able to do so.  They will have to wait until 12 months have passed and then go through the request for flexible working process again, and there is no guarantee that their employer will grant their subsequent request.

From an employer standpoint, careful consideration must be given to any requests received from employees and we recommend that all employers have a Right to Request Flexible Working Policy within their Staff Handbook, not only so that all parties are aware of the steps they need to follow, but so that the employer complies with its statutory obligations and the recommendations in the ACAS Code of Practice 5.

An employer can reject a request to work flexibly, but only if one of the business reasons set out in the legislation applies.  Examples include rejecting the request due to the inability to recruit additional staff, and if granting the request would have a detrimental impact on the quality or performance of the business.

Appeals

Employers must consider and decide upon requests to work flexibly within three months of receiving the request from their employee.  Any appeals must take place during the three months.  Employers should therefore start to consider any requests they receive as soon as possible on receipt as it may take several weeks to consider the impact the proposed changes would have on the business.

Employers must ensure that they do not treat their employees unfairly when considering requests for flexible working and they must be alert to protected employees (such as those with disabilities) asking to work flexibly as a result of their illness or condition, which is different to them asking to work flexibly in general.  If a protected employee asks to work flexibly as a result of their illness or condition, the employer has a duty to consider the request in terms of making reasonable adjustments in accordance with the Equality Act 2010.

Increases to the National Minimum Wage 

From 1 October 2014 the National Minimum Wage will be as follows:

  • Employees 21 years old and over: £6.50 per hour
  • Employees aged 18 to 20 years old: £5.13 per hour
  • Employees under 18 years old: £3.79
  • Apprentices*: £2.73

* aged 16 to 18 years old and those aged 19 years old or over, who are in their first year.  The National Minimum Wage will apply to all other apprentices who do not fit this criteria.

Since 7 March 2014, any Employer who receives a Notice of Underpayment (of the statutory minimum wage) from HMRC will be issued with a penalty of 100% of the total underpayment for all of the workers specified in the Notice.  A minimum penalty of £100 applies – the maximum penalty has been increased to £20,000.  However, if an employer is found to have underpayments of more than £20,000 in any pay reference period after 7 March 2014, they will receive one notice of underpayment per worker, or group of workers, who have been underpaid by £20,000 or more.  The ultimate penalty in such a situation would therefore exceed the £20,000 limit.