Chapter 16Employing labour- burden of additional costs;
- detrimental effect on the ability to meet consumer
demand; - inability to reorganise work among remaining staff;
- detrimental effect on quality;
- insufficiency of work during the periods the
employee proposes to work, as where the employee
proposes to be away at peak times and return at
slack times when there might be a need for less staff; - structural changes would be involved and require
planning.
The right to request flexible working was extended
to carers of adults from 6 April 2007. An employee will
be able to request flexible working in order to care for
someone who is the spouse, civil partner or partner of
the employee, a relative or someone who lives at the
same address as the employee.
Where the employer fails to comply with his or her
duties in regard to the application or bases his or her
decision on incorrect facts, the employee may apply to
an employment tribunal. If the employee’s complaint
is well founded, the tribunal may make an order to that
effect and may order the employer to reconsider the
matter and/or award compensation to the employee
of up to eight weeks’ pay (currently capped at £330 per
week). A tribunal may not orderthe employer to imple-
ment the employee’s request for flexible working.
There is also a formal binding arbitration scheme
under ACAS.
What is flexible working?
BERR guidance gives the following examples:
■annualised hours;
■compressed hours;
■term-time working;
■flexitime;
■homeworking;
■job sharing;
■self-rostering;
■shift working;
■staggered hours.
Employment Relations Act 2004: additional flexible
working rights
Section 41 of the 2004 Act inserts sections into existing
legislation to provide that dismissal of an employee for
exercising flexible working rights will be automatically
unfair despite that employee’s participation in, or any con-
nection with, industrial action. There is also a provision
that a redundancy will be unfair if the reason or principal
reason for selecting the employee for redundancy was
that he or she was exercising flexible working rights.
Furthermore, exercising flexible working rights becomes
one of the exceptions to the requirement that an em-
ployee must have one year’s continuous service to make
a claim for unfair dismissal.
Flexible working and discrimination
Employers should ensure that, in refusing a request,
including one made informally, for flexible hours they
are not discriminating on grounds of sex, race, disabil-
ity, sexual orientation, religion or belief or age either
directly or indirectly, nor breaching their duty to make
reasonable adjustments in regard to disabled employees.
In addition, the fact that the employer has complied
with the statutory procedure does not mean that a
discrimination claim will necessarily be successfully de-
fended and fail.To make payments during lay-off – guarantee
payments
1 Lay-off. To avoid difficulty the right of the employer
to lay off employees without pay because of lack of work
should be made an express term of the contract of
employment. However, even if the employer has given
himself that right in the contract he must still comply
with the provisions of the ERA 1996 in the matter and
cannot have clauses in the contract which are worse for
the employee than the basic statutory rights which pro-
vide for guarantee payments.2 Guarantee payments. The ERA 1996 provides that
employees with four weeks or more of continuous
service are entitled to a guarantee payment up to a max-
imum sum, which is currently £20.40 per day, if they
are not provided with work on a normal working day,
e.g. because of a threatened power cut (Millerv Harry
Thornton (Lollies) Ltd(1978)). The precise formula is
the average daily wage or £20.40, whichever is the smaller.
This does not apply if the failure of the employer to pro-
vide work is because of industrial action by his employees
or if the employee has been offered suitable alternative
work but has refused it. In order to qualify for a guaran-
tee payment, an employee must have been continuously
employed for one month ending with the day before the
workless day.
An employee can only receive a payment for five
workless days during any period of three months. The
effect of this is that in order to get payment for a day of477