Employment Newsletter - Issue 15

5th October 2021

Employment Newsletter - Issue 15

Focus On: Making flexible working the default?

 In this edition, we will be covering:

  • The government is consulting on making flexible working the default;
  • Acas publishes guidance on vaccinations in care homes in England;
  • The end of the furlough scheme; and
  • Government publishes COVID-19 Autumn and Winter Plan.

Legal Update #1 – The government is consulting on making flexible working the default

The government has introduced a consultation on making flexible working the default in order to ‘help employees to better reconcile their work and non-work lives’ and ‘help employers to secure the business benefits of flexible working’.

Flexible working requests are particularly prevalent at the moment due to an increased expectation of hybrid working and flexible working patterns in certain industries as a result of the Covid-19 pandemic.  Although initially introduced to provide parents and certain other carers with the right to request flexible working, this right was extended to all employees with 26 weeks continuous service in 2014 to allow everyone the right to request to alter their working hours, pattern and location if they wished. The government now recognises that ‘the pandemic has shifted the way we think about flexible working’ and that the statutory regime should go further by making flexible working ‘the default’.

Flexible working request as a day one right

The consultation considers making the right to request flexible working a day one right so that anybody can request flexible working whether they are a new starter or a long-serving employee. The government feels this will remove the perception of flexible working as a ‘perk’ which an employee must earn.

Although the government considered making the right to request flexible working a ‘right to have’, it was decided that this would not be practical. Therefore, it is important to note that the employer will still be open to reject the request based on business grounds. Instead, the government considers that that there should be a better discussion between the employee and the employer of what may be possible ‘rather than the current focus which is on what is not possible’.

It will be interesting to see how this might work in practise. For instance, if an employer agrees a job applicant’s working hours, pattern and location with them prior to offering them employment, and the employee puts in a flexible working request on day one of the job, this could be frustrating and time consuming for employers. However, the government states that the proposals would ‘enable’ job applicants to ‘ask questions about flexible working during the recruitment process’ and the employer would likely consider their response during this stage.

The government is not introducing a statutory requirement for employers to state in job adverts whether flexible working is available as it is hoped the proposals will lead to the culture change which could make flexible advertising ‘the norm’.

Requiring the employer to suggest alternatives (where possible)  

At present, the only obligation on the employer when rejecting a flexible working request is to give one or more of the eight business grounds set out in the statutory framework. For instance, these include reasons such as flexible working negatively affecting the quality or performance of the individual, not being able to reorganise work amongst staff and extra costs that will be a burden on the business.

The government states that it in order ‘to encourage a culture where employers give full consideration to requests’ it should be considered whether employers should set out the alternatives that have been explored when rejecting a request. Although some employers are already in the practise of doing this, it would place a legal obligation on employers to consider possible alternatives before rejecting a request. This would ensure that flexible working requests are taken seriously and considered thoroughly, but the extent of an employer’s obligation to explore alternatives would need to be clearly set out in statute in order to provide employers with the clarity they will need to adhere to the law.

Time restraints

Under the current statutory framework, an employee can make one flexible working request every 12 months and an employer has 3 months to communicate the outcome. The government wishes to explore whether allowing more than one request per year would make the process more ‘dynamic’ and respond better to an individual’s changing circumstances.

Furthermore, the government may consider shortening the current three-month timeline for employers to provide the outcome to the request.

Providing employees with the ability to make more than one request a year would reflect and appreciate the fact that an individual’s circumstances can change considerably in any 12-month period. However, making the number of requests in any time period limitless, could lead to HR departments and managers being inundated with requests and not having the resources to deal with them appropriately.

We await the outcome of the consultation and continue to monitor the area closely.

Legal Update #2 – Acas publishes guidance on vaccinations in care homes in England

As mentioned in our July newsletter, all care workers and anybody entering a Care Quality Commission (CQC) registered care home must be fully vaccinated from the 11 November 2021, and have had their first jab by 16 September 2021, unless they are exempt under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘the Regulations’). This includes all staff, agency workers, volunteers, students, job applicants, contractors (such as tradespeople), and other people entering the care home for work (such as health care professionals and CQC inspectors etc.).

Several categories of individuals are exempt from the requirement to be vaccinated when entering a care home. To name a few, those with a medical exemption, care home residents, family and friends of a resident, somebody providing emergency services or somebody visiting a dying resident. For an exhaustive list, please see the government guidance.

Acas has recently published guidance on the vaccination of care home staff to support employers and employees in adhering to the Regulations. Acas advises that employers should ‘plan, discuss and agree any steps they’ll need to take’ with members of staff, but also with any suppliers and contractors who might need to enter a care home. These discussions should also be had with anyone who is on any form of leave (such as parental leave or sick leave).

Acas recommends that the new law is discussed with staff ‘regularly’ as part of the consultation process, as well as any trade union representatives or employee representatives.  The guidance provides a useful list of what an employer or manager may like to discuss with employees and/or representatives, focusing on how the employer proposes to approach adhering to the Regulations.

Acas advises that if an employee does not intend to be vaccinated by the deadline of 11 November 2021, the employer should try to resolve this informally with the individual. Acas encourages employers to consider if, in these circumstances, it may be possible for the employee to do alternative work outside of the care home building(s). This could be a viable and suitable solution in some cases where the care home has a separate office as the Regulations only apply to care home premises “which provide accommodation together with nursing or personal care”.

The employee could also take a period of paid or unpaid leave whilst they are waiting to be vaccinated or obtain proof of exemption. Acas suggests that training from home may also be an option provided to employees for a short period of time.

Acas advises that if an employer is considering making dismissals as a result of an employee not taking the vaccine, they should seek legal advice. The employment team at Higgs LLP can advise on a full and fair procedure if dismissal is being considered as an option. One option for an employer would be to go down the route of a disciplinary procedure. Employers should be mindful of discrimination law when consulting with employees and considering next steps.

Legal Update #3 – The end of the furlough scheme  

The furlough scheme was brought to an end on Thursday 30 September 2021, with research by the Resolution Foundation reporting that almost one million workers were expected to still be on furlough at the end of September.

The scheme, introduced by the Chancellor in March 2020, has assisted in paying the wages of 11.6 million workers and prevented considerable redundancies. Employers who kept staff on furlough in September 2021 now face the difficult decision of making those staff redundant, laying them off (if they have the contractual right to do so) or bringing them back to work.

Acas guidance states that employers should consult with staff about the return to work and encourage staff to raise any concerns or problems. The guidance sets out that employers should consider flexible working arrangements, making reasonable adjustments, keeping the workplace safe and how the workplace might reopen.

Acas also recommends that if employees have been on furlough for a long time, which is likely to be the case for the one million workers who were on furlough when the scheme came to an end, employers should consider:

  • employee wellbeing, including mental health
  • giving employees times to adjust to being back in work; and
  • offering training or refresher courses.

If furloughed employees resist returning to work, an employer should listen to any concerns that staff have, bearing in mind their duty to protect the health and safety of all employees. If a solution cannot be reached, and an employee still refuses to return to work, they may be able to take annual leave or unpaid leave. However, employers do not have to consent to this and a refusal to return to the workplace without a valid reason could result in disciplinary action.

Legal Update #4 - Government publishes COVID-19 Autumn and Winter Plan

The government has published its Autumn and Winter Plan setting out how it proposes to deal with Covid-19 throughout the Autumn and Winter months under its Plan A and Plan B.

Under Plan A, the government hopes to predominantly use vaccines and other pharmaceutics interventions, and the test and trace system to keep the pandemic under control. Individuals who test positive for Covid-19 or are an unvaccinated close contact of somebody who has tested positive will continue to be legally required to self-isolate until 24 March 2022. Furthermore, the government will continue to provide lateral flow tests for free to assist in reducing transmission. However, the government expects that at some point in the future, individuals and businesses will bear this cost.

Under Plan A, employers will be encouraged to continue following the Working Safely guidance in order to reduce the risk of transmission in the workplace. In addition, businesses are encouraged to:

  • Ask employees to stay at home if they are feeling unwell.
  • Ensure there is an adequate supply of fresh air to indoor spaces. Businesses should identify any poorly ventilated spaces, for example by using a CO2 monitor, and take steps to improve fresh air flow in these areas.
  • Provide hand sanitiser to enable staff and customers to clean their hands more frequently, and clean surfaces which people touch regularly.
  • Display an NHS QR code poster for customers to check in using the NHS COVID-19 app, so they are alerted if there’s an outbreak and can take action to protect others.
  • Consider using the NHS COVID Pass.

Plan B will come into force if the data suggests that the NHS is likely to come under unsustainable pressure. It is hoped that this plan will not need to be implemented but the government would like to ensure businesses and the public know what to expect if Plan B becomes necessary. Due to the success of the vaccine roll out, the government does not expect to need to use lockdowns or economic or social restrictions. Instead, Plan B measures include the following:

  • Communicating clearly and urgently to the public that the level of risk has increased, and with it the need to behave more cautiously.
  • Introducing mandatory vaccine-only COVID-status certification in certain settings.
  • Legally mandating face coverings in certain settings.

The government would also consider requesting that people work from home if they can for a limited period of time.


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