Ask the Experts Update 26 November – 9 December 2022

HR & EMPLOYMENT LAW Jackie Le Poidevin, Editor-in-Chief, HR Adviser Email: hr@agorabusiness.co.uk

Day 1 Right to Request Flexible Working: How to Manage the Impact on Your Business 

In the previous Ask the Experts Update, we looked at a private member’s bill currently going through Parliament, which is aimed at boosting employees’ ability to work flexibly. We also pointed out that the government had yet to respond to its 2021 consultation on ‘Making flexible working the default’. On 5 December, the government did issue its response and confirmed that it will make the right to request flexible working a Day 1 entitlement. Here, we look at what this announcement could mean for your business and how you can reduce the potential legal and practical pitfalls. 

Your Key Points from the Government’s Response 

The government has said that:

• All employees will have the right to request flexible working regardless of length of service. At the moment, employees can only make a flexible working application under the statutory procedure once they have 26 weeks’ service.  
• Employers will have to consult the employee before deciding whether to grant or reject their request.  
• Employees will be able to make two requests for flexible working a year, instead of one.  
• Employers will normally have to make their final decision (including completing any appeal) within 2 months, rather than 3. However, they can extend this period if necessary with the employee’s agreement.
• It will scrap the requirement for employees making a flexible working request to explain what the effect of the proposed change would be on their employer and how this could be managed. The government believes this is an unnecessary burden on employees, particularly those making a Day 1 request.  
• The list of permitted reasons for refusing a request will not change.  

How to Manage the Impact on Your Business 

The Acas Code of Practice on responding to flexible working requests already recommends meeting the employee to discuss their request, so the requirement to consult is unlikely to involve more work in practice. However, removing the 26-week service requirement, allowing two requests a year and cutting the response time will create an additional administrative burden. 

In practice, rather than running the risk of recruiting someone, only for them to turn round on their first day in the job and ask for a change in their hours or to work from home, it will be sensible to:

1. Think at the recruitment stage whether a job is going to be suitable for flexible working. 
2. State in the job advert whether the role is open for flexible working or not and have a discussion with candidates upfront about what’s feasible before you hire them.  

What Happens Now?

There’s no timescale for when these changes might take effect. However, as highlighted in the previous Update, most of the proposals will be implemented via the Employment Relations (Flexible Working) Bill. Removing the 26-week service requirement doesn’t need an Act of Parliament so the government will introduce this via secondary legislation.  

We’ll look in more detail at these plans and the various private member’s bills progressing through Parliament in a future issue of HR Adviser. 

HEALTH & SAFETY Michael Ellerby, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance Email: hsadviser@agorabusiness.co.uk

Practical Ways to Get Your Safety Message Across

Failure to communicate is one of the biggest criticisms of managers, directors, and companies. It is difficult to understand and can be difficult to fix. However, failure to communicate your safety message can have serious consequences.  

Get the Medium Right 

Choose the right route to communicate to your staff. The default of many people (managers included) is email. While this is a powerful way to share information and an easy route to mass message, it does not guarantee engagement (or even that it will be read). As with all tools, choose carefully and use wisely. While email may be right some of the time, there are other routes, such as: 

• Noticeboards: display short, simple and well-crafted communications in places where they can be found and read. Keep the boards up to date and uncluttered (don’t let the message get lost or buried). This can be a great way to communicate the health and safety policy statement, site rules, etc. 
• Electronic noticeboards: these are a bit more sophisticated and a lot more expensive. This does not make it better than an old fashioned noticeboard, just different. These can be a great way to communicate evolving messages, such as safety performance, compliance levels, etc.
• Workplace notices: local workplace notices, that might communicate local information (e.g.  the identity of the Fire Wardens, First Aiders, Authorised Users, etc.). Ensure that the information is accurate, up to date, and relevant to the area. 
• Toolbox talks: these are used to discuss how things are, or should be, carried out in a particular area of the organisation. They are very useful for communicating change or for reinforcing messages. 

Avoid Some of the Regular Traps 

Some workplaces are quite adept at hiding important safety information! All too often, risk assessments are filed away in a drawer or filing cabinet. These important documents that contain essential information on how to undertake tasks safely are hidden from those that may benefit from them. So why not: 

• Consider displaying risk assessments in the area that they apply to (such as a wall saw risk assessment in a machine shop, close to the wall saw).
• Let workers know where the risk assessments are displayed (through simple briefing messages). 
• Use toolbox talks to remind workers of the location and content of the risk assessments.
• Engage with the workers about the risk assessments and especially about the importance of the control measures (i.e. the messages that will keep them safe). 

All too often, the safety message is ‘you have to do this’. 

Consider more engaging approaches, such as ‘The appropriate use of the pallet truck will reduce the stresses on your body, as well as being the correct way to do it’ or ‘if we get it right, the time taken to stay on top of housekeeping will be repaid in improved ease of movement of loads; or better, safer access; or more rapid location of the materials that we were looking for’.

Avoid ‘Fire and Forget’ messages

Think carefully about the message and how it may need to be followed-up or reinforced through different messages or approaches. If, after careful consideration and consultation, you wish to change a process, then communicate the change. This may involve a new procedure; a toolbox talk about the new procedure; a noticeboard message describing how well the new procedure is going (or raising awareness of the teething problems). 

PAYROLL Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser Email: pab@agorabusiness.co.uk

Paying Your Employees Early at Christmas

Many employers pay their employees early at Christmas, either as a result of a Christmas shut down because the normal payday falls on a bank holiday, or as a goodwill gesture. Under RTI, strict rules govern the reporting of pay and deductions to HMRC and penalties may be charged if submissions are made late. However, HMRC operate an easement where employees are paid early at Christmas.

Nature of the Easement

Where you pay your employees early in December, the rule that requires payments and deductions to be reported to HMRC at or before the time that the payment is made to the employee is relaxed. Instead, you should treat your payments as if they had been paid on the employee’s normal payday and use this date as the payment date on your Full Payment Submission (FPS). 

The FPS must reach HMRC at or before the contractual payday; in this instance, it does not have to be sent by the actual payday. However, it will normally make sense to make the submission when you run your payroll so that it is not overlooked. 

The easement is a permanent easement which HMRC have operated since 2019. 

Example

Your employees are normally paid monthly on the last Friday of the month. For December 2022, this falls on 30 December 2022.  

However, you close your business between Christmas and New Year. As a result, you pay your employees on the last working Friday of the month, which is 23 December 2022. 

Although you will run your payroll and make the payment to your employees on 23 December, for RTI purposes, the payment is treated as if it is made on the normal payday of 30 December 2022. You should enter this as the payday on your FPS. 

While the FPS will not be treated as late as long as you send it on or before 30 December 2022, it will make sense to send the submissions when you run payroll on 23 December 2022 so that the submission is not overlooked. If you do not make the submission until after 30 December 2022 (for example, when the payroll staff return to work in January), the submission will be treated as having been made late. This may trigger a penalty if a submission has already been made late in the 2022/23 tax year. 

Employees with Universal Credit

Universal credit is paid in arrears on a monthly basis. The amount of Universal Credit to which an employee is entitled depends on the level of their earnings in the assessment period. Where an employee is paid early, the employee may be paid twice in one Universal Credit assessment period, which may reduce the amount of Universal Credit that they receive. The easement prevents this from happening. 

Treating payments made early at Christmas as if they are paid on the employee’s normal pay day will help protect the employee’s current and future entitlement to Universal Credit.