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Fake Sick Notes Warning

2010-09-23T10:43:00.002+01:00

Faking it!
Fake Sick Notes Warning to Kent firms

Boutique employment law practice Loch Associates - www.lochassociates.co.uk – is warning employers across Kent to be on the lookout for fake sick notes having discovered a website which sells them for just £5.

Anyone can contact the website http://www.doctorsnotestore.com and buy a fake fit note as they are known; they are on special offer currently, 2 for just £9.99 -
http://www.doctorsnotestore.com/NHS_fake_doctors_sick_note.html

Loch Associates was founded three years ago by Pam Loch, who was recently featured on the BBC news - http://news.bbc.co.uk/1/hi/business/10243481.stm advising on key employment law issues, for example fair practice for remuneration.

Pam comments: “Although the website contains a disclaimer indicating that the notes are for novelty use only, they do look entirely genuine, are printed on authentic GP paper and even contain GP stamps with a choice of locations.

“There are steps employers can take to avoid fraud - for example building good working relationships with GPs which is also a benefit when support is required for staff with real and ongoing health issues that impact their work. Making employees aware of the serious consequences of being caught using one of these notes could also be another way to stop the abuse.”

Selling sick notes is not illegal so a person could type one up and sell it without being prosecuted. It only becomes illegal when you receive a payment or advantage, for instance paid time off work, because of its use.

Pam urges employers to ensure their employment contracts permit them to ask their employees to attend a medical examination, or to request a report from their GP. “If an employer is suspicious about the authenticity of a fit-note then they could potentially rely on a contractual right to contact the employee’s GP, or send them to an independent medical expert, to obtain verification of their condition. If clear evidence is found that an employee has submitted a fake sick-note then this is likely to constitute an act of gross misconduct justifying dismissal without notice.”

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Guidance on Employing Children

2009-09-04T16:15:00.002+01:00

The Department for Children Schools and Family has recently produced a very useful guide on Employing Children covering everything that you need to know including the types of work that children can and cannot do, the numbers of hours they can work, how the rules differ for work experience and health and safety requirements.

The guide can be found at http://publications.everychildmatters.gov.uk/eOrderingDownload/Child_employment09.pdf

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Lord Turner's taxing bonus dilemma comes with a twist

2009-09-04T16:10:00.005+01:00

This article was written by Pam Loch and appeared on the Wealthnet on 2 September 2009

Bonuses again hit the headlines last week with Lord Turner, the head of the UK Financial Services Authority (FSA) entering the debate. Controversially he has been quoted backing the introduction of taxes to curb bonus payments.

Was he misquoted or was Lord Turner suggesting a tax in the UK would control bonuses and restore trust in the financial sector? If so, what would be the implications for businesses in the UK trying to attract and retain talented employees in the future?

The Tobin Connection

Lord Turner was alleged to be backing a tax which became known as the Tobin tax after the economist James Tobin. Suggested as a way to prevent speculative trading in the 1970’s, the tax has continually been resisted by the financial sector.

The Tobin tax operated by imposing a tax on international transactions. Lord Turner was quoted as being “happy to consider taxes on financial transactions”. This has been greeted with horror by businesses concerned about the impact it could have on businesses in the UK engaging in international transactions.

Employees working in those businesses would be affected with their potential earnings being reduced as a result.

With signs of UK and global recovery, employers who have already reduced staffing levels are keen to retain their employees. Employers in a still fragile UK market therefore are rightly concerned about the impact such a tax could have on their employees’ earning capacity.

The Twist

In a television interview with Sky News however Lord Turner tells a slightly different version of events. He recognises that there may remain concerns amongst the general public about bonuses being paid for work that may not be “socially valuable work”. However if that is the case, the FSA as a regulator cannot control bonus levels. His original point was that if there is a concern then there is a choice to be made. Either;

1. Impose capital adequacy limits that increase the amount of reserves that have to be retained so that there is less profit to distribute as bonuses, or

2. Introduce a tax like the Tobin tax that would achieve a similar goal of reducing the funds available to pay employees.

The FSA cannot introduce legislation but Lord Turner did make an important point that any changes to the UK system should not be made isolation. Specifically an international agreement would be necessary. A sigh of relief? There is no doubt that the subject of bonuses is now a highly sensitive and emotive subject. The reality though is that most employers want to ensure they incentivise their staff to perform to the best of their ability and bonuses remain a key part in achieving this. Bonus arrangements have become an increasingly common element of remuneration packages to motivate and incentivise employees - a lawful performance enhancer.

If bonus arrangements have been designed well then they should incentivise the employee and the employer should benefit from their good performance. Many will argue that this is a matter between the employer and the employee as the businesses involved are private entities.

Of course a dilemma arises where the businesses are partially “owned” by the UK Government or where the actions of the employees to achieve their bonuses could have an adverse affect on the UK economy. Thrown into the pot is the tax successful businesses and employees pay on their bonuses to the UK treasury.

Directly limiting bonuses would be difficult and problematical. The UK Government would in effect have to introduce legislation that would impose a new contractual clause to override any express bonus entitlements in contracts of employment. The legislation would somehow also have to deal with discretionary bonuses in addition to contractual ones.

It would also have to provide some form of “immunity” to employers from being sued for breach of contract by their employees for non-payment of their full bonus entitlement based on their contract of employment. Then there is the question of retaining those employees and rewarding them.

The Future is …. ?

With all the potential difficulties that can derive from limiting bonuses by direct intervention in the employer/employee relationship, it is more likely that the UK Government will prefer the alternatives mooted by Lord Turner. If the UK Government acts alone however the negative impact on businesses and crucially on their ability to retain the best employees, is likely to be very significant.

With concerns remaining though about bonus levels, it will remain a topic high on the agenda in the UK and global arena too. A global response should not necessarily be ruled out. Employers therefore should not ignore the possibility that alternatives to bonuses may be the way forward to avoid intervention in their businesses and consider identifying other ways to incentivise and reward their employees.

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HMRC action over the taxation of temporary workers

2009-08-14T17:26:00.003+01:00

HMRC has published concerns that organisations supplying temporary workers are creating overarching employment contracts so that temporary workers can claim tax relief for travel and subsistence expenses. To deal with this it plans to carry out a detailed investigation into the concerns and challenges will be made where organisations are considered to be non-compliant.

HMRC also warns that measures to prevent abuses of the system may be introduced. Employers should therefore review their current processes.

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Job Interviews: Careless talk costs your business - HR Zone 30 July 2009

2009-08-04T10:50:00.009+01:00

This article was written by Pam Loch and Chloe Pereira

Many managers carrying out interviews focus not only on the skills of the candidate concerned, but also on their 'fit' for the business. Will they get on with existing employees? Do they fit with the traditional/trendy culture of the company? Will they easily adapt to the demands of working additional hours when required?

Some managers may not appreciate that the questions they ask are unlawful. Indeed, research by RecruitSure.com indicates that over a third of interviewers ask illegal questions at interview, exposing their businesses to potential claims.

Employment legislation provides protection for candidates during the recruitment process, including at interview. Candidates have the right not to be discriminated against for any of the prohibited reasons, which includes sex, race, religion, age, sexual orientation and disability.

Avoiding liability – the basic approach

Clearly managers should be provided with training on discrimination legislation and the types of questions which must be avoided. The prohibited grounds of discrimination are set out by legislation and there are obvious pitfalls which can be avoided, for example, 'how old are you'?

However, employers should also consider the questions managers may ask which do not so obviously fall under the legislation, but could be considered to be discriminatory. For example, 'how many years experience do you have in the industry'? Whilst this may seem like a perfectly reasonable question, and the motive behind asking it could be argued as being completely legitimate, it can be discriminatory on the grounds of age. Managers should be made aware that the intention behind their question won’t necessarily matter if the question itself could be interpreted as being directly or indirectly discriminatory.

A simple way to avoid this is to ensure the manager prepares all the questions they may wish to ask in advance. Each question can be carefully considered and structured, with the support of HR if required, to avoid unintentional discrimination.

Managers should also be very careful about the notes they take at interviews. Even comments to jog the memory later could be considered discriminatory, for example, 'nice young girl wearing red blouse and skirt'. Such a note may have been made as an aide memoire so the interviewer will be able to recall the candidate when reviewing his notes. However, if that candidate didn’t get the job, or if she did and another unsuccessful older male candidate suspected it was because of her/his age or sex, these records will not look good for the employer.

Although training may stop managers asking illegal questions, it will not necessarily stop them from forming their own opinions and making a decision based on discriminatory reasons. For example, a manager interviewing a female candidate notices that she is wearing an engagement ring. The manager knows he must not ask the candidate about this as he could potentially risk her bringing a claim for sex discrimination. He doesn’t expose the company by asking the candidate an illegal question, but he does decide not to offer her a second interview. He comes up with a seemingly legitimate reason, such as arguing that another candidate is more qualified.

Actually the manager has made his decision based on the assumption that the candidate is marrying and will therefore be looking to start a family soon: if he hired her she would soon be off on maternity leave.

Avoiding liability – the complete solution

In order for employers to ensure that their managers are not making discriminatory recruitment decisions, much more effort and thought needs to go into changing perception – not just practice. Employers need to educate interviewers so that they understand, for example, that 'trendy' doesn’t necessarily equal 'young', and that women make just as good employees as their male counterparts.

As well as having the appropriate mindset and asking the right questions, there are additional interview techniques which could help. Psychometric testing for example can indicate whether the candidate has the types of characteristics which will 'fit' in with the business model. For example, asking the candidate to talk about particular achievements in previous roles, rather than concentrating on her number of years experience, will help to focus the interviewer’s mind in the right direction.

The future of recruitment

Forming opinions based on subconscious perceptions will undoubtedly always form an unavoidable part of the recruitment process, but with a society and legislature continuously moving toward equality, a much more comprehensive recruitment process is likely to become part of the norm. The more thorough and considered the process, the less chance there is of not only facing claims for discrimination, but of missing out on valuable talent in potential employees which may otherwise have been discounted for illegitimate and irrelevant reasons.

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2 weeks self-certification for sickness absence imminent ?

2009-07-23T15:54:00.004+01:00

Employees could soon be able to self-certify their sickness absence for 14 days instead of 7 days.

The Government is considering the change in response to the number of workers being diagnosed with swine flu.

This step could free up medical resources and perhaps even prevent a spread of swine flu in GP surgeries. If put in place the change could last up to six-months with no advance consultation with employers before implementation.

Currently, employees can self-certify for up to seven days of sickness absence and then they must produce a certificate from their GP to cover any further periods of sickness absence.

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BERR and DIUS merger: Implications for employers - HR Zone 14 July 2009

2009-07-16T14:11:00.009+01:00

This article was written by Pam Loch and Wendy Hayes and appeared on the HRZone website on 14 July 2009

Just two years after it was created, the Department for Innovation, Universities and Skills was scrapped last month in favour of the new Department for Business, Innovation and Skills.
Pam Loch and Wendy Hayes discuss whether employers are right to be sceptical.

Last month, in yet another revamp by the government, the Business, Enterprise and Regulatory Reform (BERR) and the Department for Innovation, Universities and Skills (DIUS) were merged together to become the new Department for Business, Innovation & Skills (BIS).

Only a few years ago, BERR superseded its predecessor, the Department of Trade and Industry (DTI) although many still refer to it as the DTI to this day. However, the warm welcome to the latest proposal that had been hoped for has not been forthcoming. In the middle of a potentially deep recession, there have been raised eyebrows and questions asked as to the benefit of such a merger and the merit of additional costs being incurred to implement it. Many businesses are also sceptical about the impact of the merger. So, are businesses correct to question the merit of this merger?

The rationale for change

One of the key aims of the creation of BIS is to improve global competitiveness. In the employment arena it plans to do this by providing better employment opportunities and better skills and training.

Unlike BERR and DIUS, the BIS remit will be to focus on current and developing global issues which the recession has highlighted as a major factor in the UK economy. It will also be responsible for the development of higher and further education and the government’s ambitious plans to expand apprenticeships. Yet some employment experts warn that the merger will further complicate the skills system, which many employers say is already too confusing.

When BERR replaced the DTI it was estimated that it cost just over £200,000. It is likely the costs will be more significant this time around and there has been much criticism of the decision by the government to incur additional costs like this at the expense of the taxpayer.There is of course additional costs for businesses. As well as management having to spend time working out what the changes will mean for their business, there is also a tangible cost to take on board. Some businesses will have to incur direct costs as they may have to spend considerable sums of money reprinting and changing their documentation to reflect the new position. With very few businesses aware of the rationale for the change and unable to recognise the immediate benefits in the middle of a recession, the government has been heavily criticised. It is unclear why the government has decided to embark on yet another reorganisation, spending more money on a merger that does not appear to offer significant improvements for most businesses.

The employer’s perspective

On the plus side however, it is hoped that the merger will help to build the UK’s economy by developing businesses which will in time increase recruitment opportunities.

The government’s key aid to achieving this is a training and development tool called 'Train to Gain'. It is designed to play a key role by focusing on providing aid to businesses which allows employers to receive up to £1,000 towards recruitment costs when they take on a jobseeker who has been out of work for over six months.

Most employers have reduced their funding on training and this is clearly a symptom of the current financial climate. This is exacerbated by the fact that many employers are less likely to recruit and are more likely to be reducing their headcount during a recession. The result is a much reduced requirement for training. Going forward though, the government believes it is crucial to continue to train employees to ensure the businesses remain competitive going forward. To encourage this investment, employers will now have access to training support via BIS.

Time will tell as to whether the merger and the BIS offerings will encourage employers to recognise that in a tough economic environment, it’s important to maintain a competitive advantage and that 'skilling up' their workforce is one important tool to achieve that.

Conclusion

In the current financial climate, few would doubt that providing assistance to businesses and employees is essential. Combining the skills and strengths of BERR and DIUS could add up to a better way to try to ensure UK businesses can compete more effectively in a changing global economy.It's too early though to comment on exactly how the merger will impact on UK businesses. With a Labour government having pushed ahead with the merger at this stage, it’s also possible that a de-merger or more changes could be afoot if there is a change of government at the next election. It will be interesting to see what positive impact this merger can have before the next election, and if the next government will take a different view of what combines best. It may well be a case of watch this space.

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Review of Default Retirement Age Brought Forward

2009-07-14T16:02:00.006+01:00

The Government has announced in ‘Building society for ages’ that the review of the default retirement age will be brought forward from 2011 to 2010. This decision has been made to reflect the change in economic circumstances since the default age of 65 was introduced.

If a decision is made that the default retirement age is no longer necessary then the changes will not be implemented until 2011 to allow time for employers to review their retirement plans and for employees to consider their retirement options.

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Statutory redundancy pay increase

2009-06-16T15:13:00.005+01:00

The current limit on a week’s pay for the purposes of calculating statutory redundancy payments is £350.

However, in light of the current economic pressures and rising number of redundancies, the Government has announced that a further increase, to £380 per week, will apply as of 1 October 2009. This limit will also apply to the calculation of other types of payment, such as the basic award for unfair dismissal.

Whilst employers may balk at the thought of the increased costs involved in streamlining their businesses, they can take comfort from the fact that the next increase won’t be until February 2011.

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Government aims to change “sick note” culture with new “fit note”

2009-05-29T09:53:00.005+01:00

The new medical “fit note” has been unveiled by the Government for consultaion over the next 12 weeks.

Managing sickness is always a challenge for employers and it hasn’t been helped by the ‘sick note’ system which makes sickness a black and white issue i.e. you are either fit to work or you're not.

The “fit note” is designed to set out what an employee can do to enable them to stay at work or return as soon as possible.

The “fit note” should be implemented in Spring 2010.

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New National Minimum Wage Rates

2009-05-14T14:55:00.005+01:00

From 1 October 2009 the adult minimum wage rate will increase from £5.73 an hour to £5.80. The Youth Development Rate (for workers aged 18 to 21) will rise from £4.77 to £4.83 and for 16-17 year olds will increase from £3.53 to £3.67 an hour. The Government has also announced that, from October 2010, they will be adopting the Low Pay Commission’s recommendation that 21 year olds be entitled to the adult rate.

Many businesses may have been hoping that the Government would adopt the British Chamber of Commerce’s proposal to freeze the minimum wage rates given the current economic climate. However, these modest increases will provide benefit to low income earners whilst having a relatively moderate impact on businesses.

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ECJ judgment on Heyday's age descrimination challenge

2009-03-10T11:49:00.005Z

The ECJ has held that the UK's retirement provisions under the Employment Equality (Age) Regulations 2006 do fall within the scope of the Equal Treatment Framework Directive. The High Court now has to decide whether the retirement of workers at the age of 65 is justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.

This decision mirrors the Advocate General’s opinion delivered in September 2008 when he confirmed there is no requirement for national law to set out treatment that may be justified and that there was no difference in the Directive between the test for justification in respect of direct and indirect age discrimination.

Hopefully further clarity will follow in time.

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2009-03-03T17:32:00.004Z

Penalties for Employers with National Minimum Wage arrears

From 6 April 2009 employers could receive an automatic penalty if HMRC find National Minimum Wage (NMW) arrears.

Penalties will range from £100 to £5,000 in addition to the arrears of pay owed to the employees. Employers who settle within 14 days of notification will receive a 50 per cent discount of the penalty for prompt payment. A serious offence could lead to a criminal sentence or an unlimited fine.

Investigating officers will be given increased powers including powers to remove the NMW records from an employer’s premises. They will also be able to remove complete records rather than having to determine which part relates to NMW.

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European Parliament Revisits UK's Opt Out

2009-02-13T09:36:00.004Z

The European Commission has provided its opinion following the European Parliament’s proposal to abolish the opt out from the 48 hour week.

The move to abolish the opt out altogether has been rejected by the Commission as this is not permitted by the Working Time Directive in its current form. However the Commission is “supportive” of phasing this out over time.

The Commission also indicated that whilst there should not be an upper limit on the working hours for those who do opt out, further safeguards were necessary in order to protect those workers opting out.

Other amendments to the directive were considered including a review of the definition of working time and compensatory rest breaks.

It will be interesting to see how the European Parliament and Council address matters following the European Commission’s opinion.

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HMRC has published the new rates for statutory sick pay and statutory maternity, paternity and adoption pay for 2009/10.

2009-01-13T18:18:00.005Z

From April 2009:

The standard rate of statutory maternity, paternity and adoption pay will rise from GBP 117.18 to GBP 123.06 per week; and

The standard rate of statutory sick pay will rise from GBP 75.40 to GBP 79.15 per week.

The rates are subject to Parliamentary approval at this stage.

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EC plans to extend compulsory maternity leave to 6 weeks

2008-12-04T14:16:00.004Z

A draft EU Directive, proposes increasing compulsory maternity leave from 2 and 4 weeks for office and factory workers respectively to 6 weeks.

Other key proposals include: increasing maternity pay, giving a longer time off for multiple births and commencing maternity leave earlier than the current 11 weeks before the expected week of childbirth.

If approved, the Government fears that this will increase pressure on struggling businesses and the Treasury’s social security bill will increase. The Government also believes that flexibility for women to manage their career and raising a family could be restricted.

It will be interesting to see whether these draft proposals are approved by the EC.

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New ACAS Code of Practice on Disciplinary Procedures Issued

2008-11-13T10:03:00.004Z

The abolition of the current statutory disciplinary and grievance procedures moved a step closer this week with ACAS’ Code being approved by the Secretary of State for Business, Enterprise and Regulatory Reform.

Assuming Parliament now rubber stamps it, the Code will come into force in April 2009.
The Code is a diluted version of what’s currently in place and reverts back in some ways to the position pre the current statutory procedures. The main features of the code include; the fact that a claim can be brought at the Employment Tribunal without a grievance being raised in the first instance, that a failure to follow the Code will not result in a finding of automatically unfair dismissal and that an unreasonable failure to comply with it could result in an award of compensation being increased by up to 25%.

The Code is intended to promote standards of reasonable behavior and will be considered as best practice. We now await Parliament’s final approval of it.

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Minimum Rest Breaks for Employees

2008-10-31T15:13:00.006Z

A recent Employment Appeal Tribunal has confirmed the following in relation to rest breaks under the Working Time Regulations 1998:-

1) An employee is entitled to one rest break after working 6 hours but he is not entitled to any further breaks for time worked in excess of 6 hours.

2) If a break cannot be taken at the usual time, the employer should offer them an alternative compensatory rest break. Only allowing the employee to rest between shifts is not sufficient.

3) A claim in relation to rest breaks can only be bought for the three month period before presenting the claim (six months if taken through a grievance procedure).

The decision does confirm to a large extent what we already anticipated would be the case but it is a useful decision nonetheless.

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When redundancy can be a silver lining

2008-09-27T16:56:00.004+01:00

Being made redundant can come as a huge shock and trauma for most, but it can also be a cloud with a silver lining.

Having advised employers on making redundancies and employees on being made redundant, I have seen first hand how proper advice can have a significant impact on the process.
For many employers it can be a very difficult decision to make in the first instance. Then, there are the legal requirements to grapple with to ensure the employer goes through the correct process, acting fairly and responsibly throughout. By following the correct procedure, not only can an employer limit their exposure to unfair dismissal claims but it can also help make the whole process less painful for the affected employees too.

In my experience employees will inevitably be shocked unless the writing was already on the wall and it was obvious the company was going to have to make redundancies. Employees who are selected will inevitably ask "why me?", a normal human reaction.

Employers who take advice and follow proper procedures can manage this process objectively and in a humane way making it more palatable for all those involved. Some employers will be in a position to offer outplacement counselling and career mentoring, the benefit of which the employee can use to consider their next career move as well as bolstering their confidence.

Many employees have made it clear to me that in fact redundancy was the best thing to happen to them. Apathy had led to them remaining in a role and a place where they were unhappy. Having the decision forced on them to move on by being selected for redundancy had a positive outcome.

One example is a client who was 63 years old when he was made redundant. He had considered becoming a self employed consultant before and unable to find a new job he set up a consultancy. Six months later he wrote to me telling me it was the best thing to happen to him and his business was thriving. He wished he had done it ten years earlier.

While good communication as ever is fundamental, by understanding the redundancy process and legal requirements an employer can limit their exposure to claims. Employees should not then be left feeling unfairly treated and may look back at the outcome and see a cloud with a silver lining.

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What mothers need to know about returning to work

2008-09-27T16:41:00.002+01:00

I read an article in “Psychologies” magazine recently on what mothers need to know about teenage sons. Very useful it was too. However it occurred to me with my employer lawyer hat on that mothers could benefit from a similar approach to returning to work. In my experience advising employers and employees, returning to work mothers usually have two main concerns when they are contemplating returning to work;

Hours of work and childcare arrangements, and

Will they be able to return to the same work/position?

There are now a number of strands of legislation which are designed to deal with both those concerns.

If you are returning to work before or after Ordinary Maternity Leave (OML) (the first 26 weeks of maternity leave) then you have a right to return to the same job - with any enhancements to terms and conditions that took place while you were off, unless there is a redundancy situation. If there is a redundancy situation then you have an entitlement to be offered any suitable alternative employment ahead of any other employees. This is a rare example of lawful positive discrimination in favour of mothers.

If you are returning during or after Additional Maternity Leave (AML) then the position is slightly different. You still retain the right to return to the same job but an employer can argue that it’s not reasonably practicable for you to return to the same post. This could happen if there has been a re-organisation. In that scenario you would still be entitled to return to another job which is both suitable and appropriate.

If you are not allowed to return to the same job (or a similar one if post AML) or not offered suitable alternative employment, then you could bring claims for sex discrimination and automatically unfair dismissal.

Let’s assume though that doesn’t happen and your job is still available but you’ve considered your childcare arrangements and you would prefer to work from home for part of the time and reduce your hours on the days you are at work. What do you do?

The first thing you need to be aware of is that there are two key rights you can rely on in this situation. First of all you have the right to make a request to work flexibly. Secondly you have the right not to be subjected to indirect discrimination in accordance with the Sex Discrimination Act 1975.

Requesting Flexible Working Arrangements

The Employment Act 2002 established the right for a parent to make a written request every 12 months to change their working arrangements. This means you can ask to change the hours, the location or indeed the way you work to enable you to work flexibly. If agreed, the changes would become permanent changes to your terms and conditions of employment.

There is a set procedure and timetable the employer is required to follow in order to consider your request and if necessary your appeal to any rejection. To a large extent you will have to spend more time on this initially as you will have to prepare a business case to justify your request. In other words, explain how your changes could be accommodated.

The process will usually involve a number of meetings and/or conversations with your employer to discuss how it would work. The most common outcome usually involves the employer suggesting a variation on your original request. It is worth having a Plan B in mind therefore if you can, just in case your preferred Plan A is not acceptable.

It is worth bearing in mind you do only have a right to make a request to work flexibly under the Act. Your employer can justify declining your request, after giving it serious consideration, by relying on one of the following reasons to reject it:

The burden of additional costs.

Detrimental effect on ability to meet customer demand.

Inability to re-organise 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.

When preparing your request therefore, it is worth trying to cover off these reasons in your business case in the first instance. By doing that it makes it much harder for the employer to lawfully reject the request.

Before you embark on the statutory request route it is worth considering making a voluntary request in the first instance. By doing this you might be able to reach an agreement quickly without having to prepare all the paperwork. If an agreement isn’t reached voluntarily though, you still have the option of making your once a year formal written request, already armed with an insight into the reasons why it could be rejected.

Sex Discrimination

Employers have tended to forget that the right not to be subjected to sex discrimination continues to exist in parallel with the right to request to work flexibly. Even if your employer follows the correct procedure and rejects your request for one of the lawful reasons set out earlier, you may still be able to bring a claim for discrimination.

You could bring a claim for direct discrimination but as a woman you are less likely to succeed as the right to request flexible working applies to men and women. The employer could successfully argue they would have treated a man the same way. However you may have more scope for success with an indirect discrimination claim.

To succeed with an indirect discrimination claim you have to be able to show that the employer by rejecting your request and insisting that the job cannot be carried out on a reduced hours basis is applying a provision, criterion or practice (PCP) which:

Applies or would apply equally to both sexes; but

Which puts one sex at a particular disadvantage to the other, and

Which puts the particular employee at that disadvantage; and

Which the employer cannot show is justified as a proportionate means of pursuing a legitimate aim.

The application of this test can vary quite widely however and it’s also reliant on the individual facts of each case to ascertain the commercial rationale for the non flexible work condition being applied by the employer, weighed up against its discriminatory effect on the employee.

While the complexity of the law in this area has to be considered, an employer will also usually want to avoid the risk of a discrimination claim. Therefore if you are unsuccessful in the initial stages of making a formal request, it can sometimes be beneficial to remind an employer of their additional obligations under the Sex Discrimination Act in the appeal process.

Summary

Before returning work therefore, it is important that you acquire information about what’s happening in the workplace. Consider using keeping in touch days to maintain this knowledge or do this informally over a coffee/visit to the workplace to catch up. Then prepare well if you have to go down the formal request route. Try to put yourself in the shoes of your employer and prepare a good business case for flexible working that covers off any potential concerns the employer could have. Those are the requests that are difficult to turn down.

Flexible working consultation

2008-09-27T16:39:00.003+01:00

The Government has launched a consultation to extend and overhaul the right to request flexible working. The consultation will cover:

ways of simplifying the flexible working requests process for businesses;
ways to raise awareness levels of the right to request flexible working among employees; and
extending the right to request flexible working to parents with children aged 16 and under (currently it is for parents of children under 6 years old).

The Heyday Appeal | The Advocate-General gives his opinion

2008-09-27T16:35:00.002+01:00

Age Concern’s challenge of the UK Law, which since 2006 has permitted employers to force employees to retire at 65 has been initially rejected by a European Court's Advocate-General. The Advocate-General has recommended that the European Court dismisses Age Concern’s challenge to the lawfulness of employers terminating the employment of employees aged 65 or over on the grounds of retirement.

Age Concern claimed this is discriminatory and that specific categories of conduct to justify a decision should be defined within the regulations. The Advocate-General recommended that specific defined categories are unnecessary and a general justification is legitimate. The opinion from the Advocate-General is not binding but it could influence the European Court judges who are expected to give their ruling on Heyday before the end of the year.

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