Gordons Employment Update – 7th September 2018

Decline of the 9 to 5? – Flexible Working on the Increase

A recent YouGov survey found that just 6% of people in the UK now work a traditional 9am to 5pm. The study also found that nearly 40% of full time workers surveyed would opt to start work at 8am and finish at 4pm if they had the option.

This trend points to a raise in requests for flexible working by employees to vary traditional working patterns.

All employees who have at least 26 weeks continuous service are entitled to make a flexible working request, provided they have not made an application during the preceding in 12 months.

Eligible employees can request a change to the number of hours they work, the times they are required to work and where they are required to work from (such as from home or another site within the business).

Employees must make the request in writing, specify that they are making a flexible working request and outline the change they would like to make, confirming the date on which they would like the changes to commence from. The employee must also explain the effect the request will have on the employer and suggest how this change could be dealt with. For example an employee may make a request for fewer hours and suggest this could be dealt with via a job share.

Employers are required to deal with the request in a reasonable manner, notifying the employee of the decision within three members of the application being made. Rejection of a request can only be made on grounds permitted by statute. There are a number of permitted grounds, which include refusal where granting a request would have a detrimental impact on performance or result in burden of additional costs. Rejecting a request for any reason or failure to deal with a flexible working request properly could give rise to a claim from the employee in the Employment Tribunal.

Worker Status and Zero Hours Contracts

In the recent cases of Brooknight Guarding Ltd v Matei, the EAT held that Mr Matei was an agency worker and was therefore entitled to the same basic working conditions as the security officers employed by the end user clients of the security company Brooknight.

Brooknight supplies security guards on what are described as ‘zero-hour contracts’ to guard premises at a variety of sites in London. The majority of which, including Mr Matei, are supplied to Mitie Security Limited. The EAT held that whilst Mr Matei was engaged on a zero hours contract, he was supplied to Mitie to provide specific cover and was therefore a temporary agency worker as defined by Regulation 4 of Agency Worker Regulations 2010.

Comment

This case serves as a reminder that when considering if a worker is an ‘agency worker’ a Tribunal’s decision will depend on the individual facts at hand and not solely the contractual terms. The key factors in deciding will be if the nature and purpose of the work is temporary or permeant.

Restrictions on Extending Statutory Time Limits

Heard in the EAT, Maih v Axis Security Services considered if Mr Miah’s claim for unfair dismissal was received in time or not. The claim was received on Monday 30 January 2017, with the normal three month time limit for claims of unfair dismissal falling on Sunday 29 January 2017.

The Claimant argued that Rule 4 (2) of the Employment Tribunal Rules of Procedure 2013 provided for an extra day in which to bring the claim. Rule 4 (2) specifies that “If the time specified by these rules, a practice direction or an order for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day. ‘Working day’ means any day except Saturday or Sunday, Christmas Day, Good Friday or a bank holiday.”

Finding for the Respondent, represented by Gordons’ Philip Paget, the EAT held that the words ‘by these rules’ means that any time limits provided for outside of the ET rules, such as the time limit in the Employment Rights Act in the matter at hand, was not affected by the rule. The claim was therefore out of time.

Comment 

This case demonstrates the importance to Claimants and their representatives of keeping clear records as to how their claims are presented to the ET. In this case the Claimant was unable to evidence having posted their claim early enough to reply on deemed postal service having taken place within the limits provided by statue. As a result the claim was treated as having been presented on the day and the ET received it, meaning it was out of time.

Refusal of Postpone Disciplinary 

In Talon Engineering v Smith the EAT fond that whilst employer has a potentially fair reason to dismiss, the decision to dismiss was procedurally unfair due to employers refusal to postpone the disciplinary hearing for second time.

Mrs Smith was alleged to have referred to a colleague as a ‘knobhead’ in an email to a customer. Following an investigation meeting, a disciplinary meeting was scheduled, however Mrs Smith requested it to be postponed again in order that her chosen trade union official could attend. The employer refused to postpone and dismissed Mrs Smith in her absence.

Comment 

The decision acts as a reminder that getting the process of a dismissal right is essential when seeking to avoid claim of unfair dismissal. Employees should afforded the right to be accompanied by a colleague or trade union official to disciplinary or grievance hearings.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.