Flexible Working: Changes on the Horizon?
21 September, 2018

Since 2014, employees with at least 26 weeks’ continuous employment can make a request for flexible working. 2019 will mark 5 years since the introduction of the Flexible Working Regulations and the Government is keen to evaluate the effectiveness of flexible working rights. Work to review flexible working is already well under way, carried out in part by the Government’s Flexible Working Task Force which met for the first time in March 2018.

What might change following the review?

As yet, there is no confirmation on what changes the Government may make to flexible working rights (if any). The Government has previously stated that it wants to provide greater flexibility for women, older workers, carers and disabled people. These groups are typically over-represented within part-time work. One potential change may include a reduction in the requirement for 26 weeks’ continuous employment before making a flexible working request.

If the Government is genuinely committed to increasing workforce flexibility, it may also permit employees to make more than one flexible working request in any 12 month period. We could additionally see further detail on temporary periods of flexible working. At present, temporary changes are recognised as a possibility within Acas guidance, but greater legislative certainty would be welcomed.

The 2019 review is likely to include consultations with key stakeholders and the public at large. If your business has been particularly affected by flexible working rights, you may wish to consider having your views heard during the consultation.

What should I be doing now?

Radical change is unlikely, so it would be sensible to ensure that you are compliant with the law on flexible working in its current state. This means that, if the review does result in changes, the impact on your business will be minimised. Employers should provide employees with a flexible working policy. It is also useful to provide employees and decision-makers with standard forms for making and responding to flexible working requests.

Please contact our Employment team if you require any guidance or support on flexible working. For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw.

Working on the train – when smart working may not be so smart
3 September, 2018

A study by the University of the West of England reported last week found that 54% of rail passengers on commuter routes into London used the trains’ wi-fi to send work emails, whether on their way to work or on their journey home.  This further example of the blurring of boundaries between work and home-life, aided by the prevalence of smartphones and improvements in mobile internet access, raises a range of implications and questions for employers.

Overtime and appraisal

Should employers recognise work which the employee carries out on their commute in the form of additional pay or as part of its assessment of the employee’s commitment and contribution?  If so, how does it monitor and evaluate this additional work? Does this additional work have the same visibility as with the employee who simply stays late in the office?

Working time

Time spent commuting is not usually viewed as working time for the purposes of the Working Time Regulations (WTR), since the employer has no control over where their employee lives, how they travel to work or how long their commute takes.  The employee is not considered to be at the employer’s disposal until they arrive at their workplace.  If the employee chooses to use their journey for work activities such as emails or telephone calls, this is broadly viewed as voluntary overtime and does not count as ‘working time’ under the WTR.

There are however predictions of test-cases which would argue that requirements or expectations on employees to deal with work emails outside office hours infringe their rights under the WTR regarding working time and uninterrupted rest-breaks.  The crux of these cases is likely to be the degree of obligation.

In July a business executive in Ireland was awarded €7,500 compensation for breaches of working time legislation, because the employer’s requirement on her to deal with out-of-hours work emails resulted in her working hours exceeding the maximum 48 hours a week.

Culture and well-being

Organisations should consider whether their approaches and attitudes to accessibility and out-of-hours working might foster an environment in which employees feel unable to switch off and so impact their well-being and engagement.  These issues should in turn be reflected in their policies such as bring-your-own-device (BYOD) policies.

According to research last year by the CIPD, views of employees are divided whether remote access to work empowers them by supporting flexible working and enhancing productivity, or has overall negative effects such as disrupting leisure time, increasing anxiety and impacting on quality of sleep.  A third of UK employees felt that having remote access meant that they could not switch off in their personal time, and nearly a fifth felt as though they were under surveillance as a result.

In France a “right to disconnect” law was introduced in January 2017, which requires companies with over 50 employees to draw up a good conduct charter enabling employees to switch off, in all senses, when off-duty or on holiday leave.  The objective of this legislation is to ensure compliance with rest-times and holidays and due respect for the employee’s family and personal life.  Some companies in this country and elsewhere in Europe are implementing similar protocols.

Confidentiality and data security

Any work activity which the employee carries out while using public transport could have serious implications for the employer’s data security and GDPR compliance or could allow the inadvertent disclosure of confidential information.  Even if the employee’s device has appropriate security installed, there are obvious risks where a fellow passenger can read whatever the employee is reading or typing.

Please contact our Employment team if you require any guidance or support on these issues, and for updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw

Relying on unsigned contracts of employment
23 August, 2018

Contract with signature space and pen

In order for a contract to be enforceable, it must exhibit several key formalities. However contrary to popular belief, a contract need not necessarily be signed by the parties to it. The parties to an unsigned contract may be taken to have agreed to its terms in other ways, for example by beginning to perform it in a manner consistent with the written terms. Nevertheless, obtaining signatures provides highly persuasive evidence that all parties were in agreement to key terms.

The recent case of Tenon FM Limited v Cawley 2018 EWHC 1972 (QB) highlights the issues that may arise when relying on an unsigned contract of employment.


In Tenon the defendant, Susan Cawley, was the former Operations Director of the claimant cleaning company, Tenon FM Limited. Miss Cawley began working for the claimant in May 2008. The terms of her employment were recorded in a contract and included post-termination restrictions. These restrictions curtailed Miss Cawley’s ability to entice away the claimant’s customers, business or management staff for a period of 12 months following the termination of her employment. The claimant could not locate a signed copy of this contract.

Miss Cawley was promoted in December 2011 and the claimant asserted that she was subject to a new contract. This contract contained more detailed and onerous post-termination restrictions. Again, the claimant could not locate a signed copy of the contract.

In May 2018 Miss Cawley resigned from her position. It is alleged that she then took up employment with one of the claimant’s rival companies. It is also alleged that Miss Cawley induced another of the claimant’s employees to join her. The claimant sought injunctive relief against Miss Cawley on the basis that she had breached the post-termination restrictions set out in her contract.

Outcome of hearing

The claimant’s application for injunctive relief failed. Whilst the reasons for this included the poor conduct of the claimant, the High Court also pointed to evidential issues relating to Miss Cawley’s contract of employment. In particular, the Court considered that the absence of a signed contract meant that it was not clear whether Miss Cawley had agreed to be bound by the post-termination restrictions in question (among the other clauses of the contract). Indeed, one of Miss Cawley’s arguments was that she had not signed the contracts precisely because she disagreed with the post-termination restrictions. The claimant could not produce any evidence to rebut this argument.

Overcoming issues with unsigned contracts

The obvious solution to the problem of unsigned contracts is to ensure that all parties properly sign and date their agreements! However for logistical or administrative reasons, this may not be possible. In the absence of a signed contract the party seeking to rely on its terms should be able to provide other evidence that it was performing its contractual obligations on the basis of the unsigned terms. This could include correspondence to that effect.

Where a contract is varied following its signature, the terms of (and agreement to) the variation should be duly recorded in writing, together with the “consideration” provided for the variation. In an employment context, this consideration is likely to be the payment of money such as a salary increase.

Camilla Beamish

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw

Sleep-in workers and minimum wage entitlements
6 August, 2018

The Court of Appeal has delivered its interpretation of national minimum wage (NMW) laws and their application to sleep-in workers in Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641. The ruling also considered the case of John Shannon v Jaikishan and Prithee Rampersad (t/a Clifton House Residential Home).

Overturning an earlier Employment Appeal Tribunal decision, the Court determined that sleep-in workers are only entitled to be paid NMW for the time when they are required to be awake for the purpose of working.

The law on the national minimum wage is set out in the National Minimum Wage Regulations 2015. Generally if a worker is required to be available for work, the national minimum wage is payable irrespective of whether the worker is actually awake. However if a worker has an arrangement to sleep at or near their workplace and is provided with suitable facilities for sleeping, the national minimum wage is only payable for the time when the worker is awake for the purpose of working.

The Mencap case

Ms Tomlinson-Blake was a care worker who provided care services to two men with autism and substantial learning difficulties. Under the terms of her employment contract, she was expected to sleep during her night shifts but could be woken up to work if needed. She was paid a flat rate for this work. Generally, Ms Tomlinson-Blake had uninterrupted sleep during these shifts: she had only been required to provide care during the night on 6 occasions in the previous 16 months.

The Employment Tribunal found (and the Employment Appeal Tribunal agreed) that Ms Tomlinson-Blake was actually working for the whole period of her night shifts. This meant that the sleep-in exception outlined above did not apply and she was therefore entitled to receive the national minimum wage for her whole shift.

The Court of Appeal disagreed with this analysis. Although Ms Tomlinson-Blake was required to keep a “listening ear” out during the night, she was only in fact available for work when asleep rather than actually working. Accordingly, the national minimum wage was only payable in respect of that time when Ms Tomlinson-Blake was actually required to be awake for the purpose of working.

Who benefits from this outcome?

From a tax perspective, Mencap and other care providers have gained much-needed clarity from this decision. Previously, HMRC had demanded the income tax due on back pay for sleep-in workers. For this, the potential tax liability across the social care industry had been estimated to amount to £400 million. If care providers were required to meet this liability, the consequences for service delivery could have been severe.

Whilst relieved to avoid this expenditure, Mencap expressed its sympathy for sleep-in workers in a statement following the ruling. Its chair, Derek Lewis, said that “dedicated care workers deserve a better deal”. Mr Lewis also called on the Government for new legislation in this area.

The union Unison has indicated it may appeal to the Supreme Court. It has also echoed Mencap’s calls for legislative change in the approach to sleep-in workers’ pay.

Please contact our Employment team if you require guidance on minimum wage requirements in respect of on-call or standby time.

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw

The Brexit White Paper: Employment Law Implications
26 July, 2018

On 12 July 2018, the Government published its much-anticipated White Paper, ‘The Future Relationship between the United Kingdom and the European Union’. This White Paper details the Government’s plans for delivering Brexit and for how the UK and the EU will interact with each other going forward. Within the first of its four chapters the White Paper documents the desire for “open and fair competition”, which includes employment rights.

What does the White Paper say about employment rights?

The White Paper reiterates the Government’s commitment to “strong labour protections”, but notes that the employment landscape is changing. The Government wishes to commit to the “non-regression” of labour standards. In other words it is the intention that, at the withdrawal date, the UK will not repeal EU laws from which employment rights are derived.

The Government also proposes that both the UK and the EU continue to respect obligations derived from the International Labour Organisation (ILO).

Without making any firm statements, reference is made to ongoing discussions on temporary mobility for non-typical classes of individuals. This includes scientists and researchers, self-employed professionals and employees providing services.

Why does this matter?

Many important UK employment rights are derived directly and indirectly from EU law. This includes rules on working time and protection from discrimination. If labour standards are subject to non-regression during Brexit negotiations, the impact of changing rights and obligations will be lessened for both employers and employees. Employees will continue to enjoy rights which are directly enforceable within the UK’s courts and tribunals.

The White Paper’s recognition of the role of the ILO is also significant. The ILO is United Nations Agency which sets and monitors standards for labour law. Its fundamental conventions protect rights such as freedom of association and collective bargaining. These conventions are widely ratified across the globe.

The future of employment rights outside of the EU

It is a benefit to workers and employees that the Government remains committed to high standards of employment law post-Brexit. Employers will also be encouraged by the certainty that the Government’s “non-regression” approach will bring if followed through.

However the White Paper represents only one side of the negotiating table. What will happen if the UK and EU cannot strike a deal? In this instance, it is not clear whether the Government’s intentions will (or even can) be carried forward. It is therefore too soon to know precisely how UK employment rights will look come 30 March 2019.

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw

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