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UPDATE: Flexible Working – Carer’s Leave – Fire & Rehire

CONSULTATION: MAKING FLEXIBLE WORKING THE DEFAULT POSITION

The UK Government announced earlier this week that it was considering legislation to provide employees with a Day 1 right to request flexible working.

The 56 paged Consultation Document has now been published.

The Consultation Document sets out five proposals for reshaping the existing regulatory framework so that it better supports the objective of making flexible working the default. These are:

  1. Making the Right to Request Flexible Working a Day One right (removing the 26 weeks qualifying period);
  2. Considering whether the eight business reasons for refusing a Request all remain valid and with possibility of replacing them with a ‘reasonableness of refusal test’;
  1. Requiring the employer to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working?
  1. Reviewing the administrative process underpinning the Right to Request Flexible Working to include:
    • Increasing the number of times an employee can submit a request to work flexibly (currently it is one request very 12 months)?
    • Shortening the period of time that an employer must respond to a flexible working request (currently it is 3 months)?
  1. Include a right to request a temporary arrangement.

 

The Document notes that “The territorial extent of these proposals extends to England, Wales, and Scotland. Employment law is devolved to Northern Ireland.”

Therefore, whilst these proposals are of interest to Northern Ireland, it will be for Stormont to decide our direction and whether we will follow suit.

The Consultation closes on 1st December 2021.

We will be considering the proposals in greater detail and welcome any Member feedback which will be included in any response that we submit.

The Consultation Document can be accessed HERE

 

GOVERMENT RESPONSE ON CARER’S LEAVE

In March 2020, the Government launched a consultation on Carer’s Leave in recognition that unpaid carers face particular challenges in balancing work and caring responsibilities that may warrant a specific new employment right to time off from work.

Over 800 responses were received, and the Government has now published its response. It proposes to bring forward laws to introduce a new leave entitlement for unpaid carers through legislation when parliamentary time allows.

The entitlement will provide for:

  • A right for unpaid carers to take up to one week (5 working days) of unpaid leave per year.
  • This will be a Day 1 right
  • It will broadly follow the definition of dependant used in the right to time off for dependants
  • The person being cared for must have a long-term care need.
  • The leave can be taken flexibly, either in individual days or half days, up to a block of one week.
  • The notice requirement will be in line with that of annual leave, where an employee must give notice that is twice the length of time being requested as leave, plus one day.
  • Employers will be able to postpone, but not deny, the leave request.
  • Refusal grounds will be strictly limited to where operation of their business would be unduly disrupted.
  • No requirement to provide evidence to the employer

 

Despite being asked to include childcare, the Government has stated that the right to take carer’s leave is not the appropriate place to address potential changes to parental leave entitlements. However, it proposes to consider changes to parental leave and flexible working ‘when the time is right.’

The full response can be accessed HERE

 

‘FIRE & REHIRE’ CIPD GUIDE

‘Fire & Rehire’, the phrase commonly used when an employer dismisses an employee on existing terms and conditions and rehires them on new ones. The practice has received some negative press this year with the Labour Party even calling for an outright ban on it.

However, there is a growing recognition that, used correctly, fire & rehire is needed as a last resort and provides both businesses and employees with choices.

CIPD has now produced a helpful Guide for any businesses considering it as an option.

It has sections on:

  • Overview
  • Context
  • Varying the terms and conditions of employment
  • Good practice dos and don’ts – changing terms and conditions
  • ‘Fire and rehire’
  • Case study: changing employment terms and conditions
  • Importance of considerate and empathetic management
  • Conclusion
  • Case study scenarios

 

The Guide can be accessed HERE

Whilst the Guide is a worthwhile read for any business considering this option, we strongly encourage our Members who are considering dismissing and re-engaging employees, to contact the Legal Team for specific legal advice on their particular circumstances.