(Solution) CIPD AC 4.4: Other employment rights relating to Flexible Working

Solution

Right of work from home According to Employment Rights Act 1996, Section 44, if the health and safety requirement at the workplace is compromised, employees have the right to ask to work from home (Legislation.gov.uk, 1996).

Right of flexibility in start and finish time– According tothe Flexible Working Regulations 2014, employees who have worked at least 26 weeks straights have the opportunity to ask for flexible working hours (Legislation.gov.uk, 2014).

Right to the paid same amount for same flexible working hours-  As long the flexible working hours are equivalent to four days of complete work in a week, employers cannot deduct their pay during flexible Working.

For an employee, they could request for a flexible working to an employer based on the following grounds (ACAS, 2023);

• Reducing working hours for part-time working arrangement

• Altering the start and finishing times

• Embrace of flexible working with start and finishing time (also identified as flexitime)

• Working for less days (compressed hours)

• Home working or elsewhere

• Job sharing with others

In line with the ACAS Code of Practice on Flexible Working Requests, they can request for flexible working arrangement if they have been with an employer for 26 weeks. Also, they ought to have been classified as legal employee and not requested for flexible working in past 12 months. For the employer, a fair decision is required to be given within a period of 3 months. Failure to receive the decision within this timeline would prompt employee to raise an issue with employers. In the process of hearing, the employee could request their employer to bring someone to the flexible working request meeting such as trade union or a colleague.

There are the minimum requirements for the flexible working to be approved by an employer and the request could be declined if it is costly. Nevertheless, the employee can raise an appeal which can be either be done formally and informally. A maximum of 3 months of receiving the original request would be taken for responding to the appeal. Further, when the appeal is considered and denied to the employee, they can consider making formal complaint by raising grievances, making a claim to employment tribunal, use of Acasarbitration scheme and arriving an agreement through mediation process (ACAS, 2023).

As evidenced in Gov.uk (2023), problems would emerge in an event the employer attempts to change a contract without an agreement, or re-employs an individual on new terms and conditions. Also, this could occur in instances of breaching of a contract where contract terms are broken such as employers failing in paying agreed wages or employees failing in working in agreed hours. When the employers and employees fail in resolving the disputes on the changes, the available option is informal engagement or mediation. In a situation this is not resolved, the employers also leverage from the right of taking legal action. It is essential sourcing for an advice at the start since legal actions could be very expensive. The trade union could also offer legal advice. For the imposed change, True Health Management team would be costly for the organisation with their reputation being lost. This is the same case for dismissal/rehiring and unfair dismissal. For breach of contract claims, True Health Management would potentially face the risk of industrial tribunal. The risks associated with time limits would include compensation of financial losss amounting to £25,000.

Adopting the definition in ACAS (2022), the redundancy is identified as a process followed by an employer, collective consultation and employee rights inclusive of notice periods and pay. The steps followed in redundancy include;

1. i) Justify the necessity of redundancies
2. ii) determine and follow rightful approaches

iii) Aware employees towards upcoming events

1. iv) Uphold redundancy consultation process (Acas.org.uk, 2023)
2. v) Selection of employees on redundancy
3. vi) Figure out or acknowledge redundancy pay

vii) Offer an advanced redundancy notice

viii) Offers an appeals process

1. ix) Offering alternative employment (Acas.org.uk, 2023)
2. x) Supporting staff and plans for the forthcoming future

In line with the Employment Rights Act 1996, there is a need for employers to consult collectively during the redundancy process. Failure of this would be identified as unfair dismissal claims. Also, in line with the Equality Act 2010, an employee should not be made redundant due to possession of protected characteristics such as age, sex, sexual orientation, marital status, disability, race/religion.

Finally, the employer must consult collectively in line with the TULRCA provisions. This is with the trade unions or elected employee representatives. This occurs in an event 20 or more employees are to be made redundant in a timeline of 90 days (ACAS Guidelines, 2022). According to the legislation, of 20 to 99 redundancies are to be made, 30 days before consultation must be pursued with 45 days before for more than 100 redundancies.

As evidenced in Acas.org.UK (2023), the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) offer the rights of employees in an event their employment changes when a business is transferred to a new owner. According to the regulations, business transfer include when a business moves from one employer to the other. An example is merging of 2 businesses for forming a new one. An employer must however change for TUPE to apply and an employee automatically transfers to the new employer.

Further, for service contract changes, this occurs in outsourcing- service offered in-house taken over by a contractor, insourcing- contract ending and work transferred in-house and retendering- contract ending and taken over by a new contractor. In line with 2014 changes of TUPE regulations, the information on transfer must be provided within a period of 28 days prior the transfer of business.

In line with the TUPE regulations, employer ought to consult in the process of making the TUPE transfer. The process followed include being advance informed on the TUPE transfer with no specified timeline for notification. The scope of consultation can include engagement of recognised trade union and employee representatives. Failure to pursue the detailed consultation would lead to union making a claim. This is with the outcome being offered with 13 weeks pay. Nevertheless, under the TUPE regulations, the employers have the right of dismissing an employee in transfer under the reasons of economic, technical and organisational (ETO) reasons. Nevertheless, there is a need for strictly following all the dismissal and redundancy procedures with acting reasonably of decisions for dismissal or selection for redundancy.

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