Set to come into force around September 2024, this legislation grants workers, especially those in atypical employment like temporary or zero-hour contracts, the right to request more predictable working patterns.

The Act is designed to address the challenges faced by individuals in precarious work arrangements, where the unpredictability of hours and income can create significant personal and financial insecurity.

Key elements of the Act include:

1. Eligibility: Workers need to have at least 26 weeks of service to be eligible to make a request for a predictable work pattern.
2. Request Limitations: Workers are permitted to make up to two requests within a 12-month period, covering aspects such as work hours, days, and contract lengths.
3. Employer Response: Employers must address these requests within a month and can decline them based on specific grounds such as additional costs, impact on customer demand, insufficient work during the requested times, and planned structural changes.

Implications for Employers

For employers, the Act represents a significant shift in the management of workforce flexibility. It underscores the importance of careful workforce planning and the need to establish clear, transparent procedures for handling requests under the new law.

Employers will need to prepare for an increase in formal requests for more predictable working arrangements. This preparation may involve reviewing and, where necessary, revising current employment contracts, policies, and procedures to ensure compliance with the new legal framework. Additionally, employers should consider the potential impact on business operations, particularly in sectors that traditionally rely on flexible or irregular working patterns, such as hospitality, retail, and logistics.

The Act also introduces potential liabilities for employers who fail to comply with the new requirements. As with other employment rights, failure to handle requests appropriately or to provide sufficient reasons for a refusal could result in tribunal claims, with associated reputational and financial risks.

Next Steps and Recommendations

With the secondary regulations expected to come into force next month, employers should take proactive steps to ensure they are fully prepared for the changes. Key actions include:

1. Reviewing Employment Contracts: Ensure that current contracts reflect the new rights and obligations under the Act, and consider how predictable working terms could be accommodated.
2. Updating Policies and Procedures: Establish clear, consistent procedures for handling requests, including training managers and HR personnel on how to assess and respond to requests fairly and lawfully.
3. Assessing Workforce Planning Needs: Evaluate how increased predictability might affect business operations and consider adjustments to workforce planning strategies to maintain flexibility while complying with the new requirements.
4. Communication with Employees: Clearly communicate the new rights and processes to employees, ensuring they understand their rights under the Act and how to make a request.

Sherrards Solicitors LLP is well-equipped to assist employers in navigating these changes. Our employment law specialists are on hand to provide guidance on compliance, workforce planning, and dispute resolution, ensuring that your business is prepared for the implementation of this significant legislation.

For more information or to discuss how this legislation may impact your business, please contact our employment law team.

Partner in Employment law at Sherrards Mark Fellows, answers some common questions ahead of another heatwave:

Do I have to pay employees who are unable to get into work due to travel difficulties?

Take a look at your employment contracts and Employee Handbook. These might specify whether an employee is entitled to be paid if they are unable to get in due to travel problems. If they are silent, however, then the default position is that the obligation is on the employee to get into work, regardless of any difficulties caused by the weather or otherwise. If they do not attend, they are on unauthorised absence and they are arguably not entitled to be paid.

Be careful, however, if you are going to take this approach. Firstly, there is a potential that the employee can argue that failure to make payment in these circumstances is an unauthorised deduction from wages (assuming this is not covered in the employment contract). The defence to this would be that there was no entitlement to pay as no work was done, but it may be an argument you would prefer to avoid. Secondly, you should assess whether the financial benefit of withholding pay is outweighed by the impact on staff morale and productivity. This is particularly so if the weather and travel conditions are extreme and, even with the best of intentions and efforts, employees are unable to get in.

Above all, you should ensure that your approach is consistent. Ideally, tell staff in advance (in written format, e.g. memo or email) what your approach is going to be or, even better, have an “Extreme Weather Policy”.

Consider whether employees are able to work from home, whether alternative travel arrangements can be made or whether there are other ways around the issues – e.g. travelling outside of peak times to avoid the worst of the heat. Otherwise, clearly explain to employees that either: (a) any time off will be unpaid; (b) time off will be paid but that they are expected to make up the time later; or (c) they can request the time off as paid annual leave or unpaid time off for dependant’s leave (see below). Prior notification is particularly important if you have made payments in the past in such circumstances.

As an aside, be careful if you are trying to insist on employees taking annual holiday retrospectively. Employees will need to agree to this unless the contract specifically allows for you to do this.

 

I have an employee who says they cannot come in because their child’s school has closed due to the heat. What shall I do?

Employees with responsibility for a dependant are entitled to emergency time off in circumstances in which there is an unexpected disruption to childcare. Unless the school closure was announced a reasonable time in advance, such that the employee had sufficient time to arrange alternative childcare, this would probably be an emergency situation and employees are entitled to take time off and not suffer any detriment for doing so.

Strictly speaking, the time off is unpaid (unless the contract of employment says otherwise) but employers may again want to consider the impact on morale that this approach would have. Again, it is important to be consistent in your approach. You should be especially careful where other employees who are unable to make it into the office due to travel are being paid.

 

One of my employees failed to come into work today, blaming the heatwave and travel issues. I think he is using it as an excuse and could have easily come in. Where do I stand?

If you believe that an employee is falsely using the weather conditions as an excuse for absence or lateness, this can be treated as a disciplinary matter. If you consider the matter to be serious enough (e.g. if it is a persistent or blatant case), you should investigate in line with your disciplinary policy and take action as appropriate.

However, in less serious or one-off cases, you may be better placed simply having a quiet word with the employee and letting them know that any further time off will have to be taken as holiday or will be unpaid. Bear in mind that it can often be difficult to prove or disprove an employee’s ability to come into work in these circumstances.

 

Our air conditioning isn’t great. Is there a maximum temperature above which I am obliged to shut the workplace?

In short, no, there is technically no maximum temperature above which people aren’t allowed to work. In offices or similar environments, the temperature should be “reasonable”. You should have thermometers around the workplace so that you can check the temperature – although temperature itself is not the sole issue, since humidity, radiant heat sources and clothing are also factors.

The TUC has lobbied for an upper limit on workplace temperature to be introduced – suggesting that employers be forced to take steps when the temperature inside hits 24˚C. Under the TUC’s proposals, staff could be sent home and employers prosecuted if temperatures reach 30˚C (or 27˚C for those whose work is physically demanding).  However, these proposals are currently not reflective of the law.

If your working environment is getting too hot to be considered “reasonable” then you could be putting your staff’s health and safety at risk. If, having taken steps to try to control those risks, the temperature is becoming dangerous enough to endanger health (e.g. through heatstroke etc) then you would be best advised to shut the workplace.

 

The above provides a general guide to issues that might arise. However, each situation is unique and different considerations may apply in your case. We would therefore recommend that you consult a solicitor, or another suitably qualified person, about your specific circumstances.

To find out more about employers responsibilities during a heatwave, click here to speak Employment Partner Mark Fellows. 

Partner Mark Fellows, Head of the Sherrards Employment department explores when you should consider suspending an employee.

Whilst suspension is a precautionary measure, it is important to note that the question over whether to suspend in the first place is still a vital question to be asked before any steps are taken.

This has been highlighted by a recent tribunal matter where a school had suspended one of its teachers in order to investigate allegations that she had used unreasonable force against two of her pupils. Whilst some may think that the severity of these allegations would warrant the suspension of the teacher, the High Court held that it had not been necessary for the school to suspend the teacher and that they could have considered alternative measures. However, on appeal, the Court of Appeal confirmed that the school did have reasonable and proper cause to suspend the teacher.

What is suspension at work?

Suspension is most commonly used for employee allegations involving gross misconduct. The suspension of an employee can therefore be a useful tool, providing an employer with invaluable breathing space to properly investigate an incident in the workplace.

If used inappropriately however, suspension can result in an employer being faced with a constructive dismissal claim from an aggrieved employee. It can damage employee relations or be seen as casting a shadow over an employee’s competence or character. Accordingly, it should be used with care.

ACAS provides the following guidance in relation to suspending an employee: https://archive.acas.org.uk/suspension

Rules for suspending an employee

The appropriate test for an employer is not whether it is “necessary” to suspend an employee but whether an employer has “reasonable and proper cause” to suspend an employee. Requiring suspension to be “necessary” was deemed to be too high a bar and so the above case has confirmed the threshold for suspension.

If you’re considering when to suspend an employee, this means that an employer may legitimately be able to suspend an employee who is suspected of stealing. In these circumstances, the employer’s “reasonable and proper cause” may be to ensure that the employee in question is unable to carry out any further misconduct.

An employer may also be able to justify suspension on the basis that there is a risk of the employee interfering with investigations, tampering with evidence or attempting to influence witnesses.

If you need further guidance on the process and legal rules for suspending an employee, get in contact with our expert employment solicitors today.

What to say when suspending an employee

If you’re considering if and when to suspend an employee, you can mitigate the risk of a constructive dismissal claim by:

1. Making it clear that suspension is not disciplinary action in itself or intended to be a punishment;
2. Reassuring the employee that suspension is not an indicator of guilt or that the outcome of any investigation is predetermined;
3. Confirming that you will be conducting a full and proper investigation and setting a clear timeline for future communications;
4. Notifying the employee of a point of contact (such as a member of HR) during their period of suspension; and
5. Confirming that suspension is a temporary measure.

You should also set clear boundaries and expectations for a suspended employee. For instance, you should make it clear that whilst on suspension they remain an employee of the company, bound by the terms and conditions of their employment and should remain contactable during working hours (apart from during periods of pre-arranged annual leave).

You should also make it clear that they are required to co-operate in your investigations and to attend investigation and/or disciplinary meetings. Depending on the allegations made, you may also wish to make it clear that they should not contact any of their colleagues and/or attend the workplace whilst your investigations are ongoing.

In order to avoid any doubt, we would recommend that a letter is sent to the employee in order to confirm the terms of their suspension.

Potential legal issues

Problems can arise for an employer if:

1. The suspension is communicated to others in an improper way – employers should be careful how they explain the employee’s absence to others and ensure that they do not imply any wrongdoing or fault on behalf of the employee. Suspension is still viewed by some as carrying a negative stigma and so you may decide to explain an employee’s absence in an alternative way;
2. Suspension is too high a sanction – an employer needs to consider whether the potential disciplinary matter is serious enough to warrant suspension in the first place. Minor misconduct will often not warrant suspension. On the other hand, it may actually damage an employer’s case if they do not suspend in a clearly very serious case;
3. Suspension continues for too long – employers should try to complete their investigation as quickly as possible and should review suspension if and when new evidence comes to light. If, for example, you discover clear CCTV footage which refutes the allegations made, you may consider ending a period of suspension prematurely (whilst continuing with your investigations);
4. Suspension is unpaid – employers should not suspend an employee without pay unless they have the express right to do so in the employee’s contract of employment. Even with the required provision, this is likely to be a high-risk strategy and in practice, there are limited circumstances where you would not pay a suspended employee.

Final thoughts

In summary, where the question of whether to suspend arises at the outset of an internal procedure, it is worth remembering that this decision will be material to the fairness of the entire process and that it is important to be able to show reasonable and proper cause in order to suspend an employee.

To find out more about suspensions and employment law, please contact Mark Fellows.

“IR35” – it could almost be mistaken for a character from the latest Star Wars film, and whilst IR35 is not a new concept, it will be hitting the private sector in 2021*. If your business currently engages consultants or contractors operating as part of a personal service company, this is a premiere that you ought not to miss.

What is “IR35”

“IR35” refers to existing legislation that was designed to close a tax loophole whereby an individual could in theory, work as if an employee of an end user client but seek to avoid being subject to PAYE deductions by supplying their services through an intermediary, usually a personal services company. Like the Hokey Cokey, you were either ‘in’ or ‘out’. If inside IR35, you were caught and the individual should be paid via PAYE. If outside of IR35, then the arrangement was regarded as genuine self-employment for tax purposes.

So, what has changed?

Firstly, the old regime required the consultant / contractor to determine their own status for tax purposes, and they generally bore the risk of getting this wrong. With effect from April 2021, and in respect of the private sector, the onus passes to the entity engaging the individual, which in many cases will be the end user who receives the services. The engaging entity will therefore have to satisfy themselves as to whether the consultant / contractor is inside or outside of IR35.

In addition, if the consultant / contractor is inside IR35, and the new rules applies to the entity engaging the individual (see below), then in principle that entity becomes responsible for accounting to HMRC for tax and national insurance in respect of the payments made to that individual. The situation becomes more complicated if a recruitment business is involved, where it supplies the individual to the end user entity and pays the individual directly.

This change of approach already applies to the public sector and insofar as the private sector is concerned, it only applies to engaging entities that are not “small”.

A “small” company is one which satisfies two or more of the following requirements:

• Its annual turnover is not more than £10.2 million.
• Its balance sheet total is not more than £5.1 million.
• It has not more than 50 employees.

How do you know whether a consultant / contractor is ‘in’ or ‘outside’ of IR35?

HMRC have an online questionnaire, known as CEST, which is designed to give you a definitive answer to this conundrum. If the questions are answered honestly, then it can be relied upon in the event of a later dispute. However, some of the questions are difficult to answer, and a possible outcome of CEST is that it is unable to make a determination on the matter!

As it happens, the test under IR35 is similar to (but not the same as) that which applies in employment law, in determining an individual’s employment status. This means that particular focus will be placed on the extent to which the end user controls the consultant / contractor, the extent to which the services need to be performed personally by the consultant / contractor (as opposed to having a right to substitute) and the extent to which mutuality of obligation exists between the parties. It also means that the label that the parties attach to the arrangement is far from determinative.

What should you do?

If you engage consultants / contractors, we would recommend you take the following steps:

• Review those arrangements and consider utilising CEST;
• Ensure that you have a written contract that formalises the arrangement, and is drafted to best protect your business;
• Take specialist advice – your accountant on the tax side, and an employment lawyer on the legal side.

It follows that if you decide that somebody is ‘inside’ IR35 and will be treated as an employee for tax purposes, that equally will make it more likely they will be regarded as an employee for legal purposes, and that carries its own separate implications.

*As of 17th March 2020, the Government announced the delayed introduction of IR35 to the private sector to April 2021.

For further information, please contact Mark Fellows.