Ask the Experts Update 6 – 19 January 2024

 

 

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

Updated Flexible Working Code of Practice Published: What’s Changed?

Acas has now published a revised version of its updated Code of Practice on responding to flexible working requests. The revisions take into account the responses it received to its consultation exercise last summer. We set out 6 changes to the draft Code and give some tips for what actions to take now that the wording has been firmed up.

As you’d expect, the latest version of the Code of Practice still reflects the changes to the flexible working regime that are due to take place from 6 April. From that date:

• Employees will gain the right to request flexible working from Day 1 in the job.
• They will be able to make two flexible working requests in any 12-month period, instead of the current one.
• You will have to respond to requests within 2 months, instead of the current 3.
• You will have to consult an employee before rejecting their request.

Acas has, however, made a few revisions to the initial draft of the Code, including some re-ordering of the text and the following changes:

Key Changes

1. The original draft recommended that you offer the employee a meeting to discuss their flexible working request even if you intend to accept the application. The latest version states that in this situation, you should offer an opportunity to meet to clarify any points that may be helpful, such as agreeing dates to review how the arrangement is working. However, it clarifies that, ‘The employer and employee may mutually agree that such a discussion is not necessary.’
2. The new version is more explicit about the contents of your consultation meeting with the employee if you can’t accept their request in full. It says you should discuss ‘any potential modifications to the original request, or any alternative flexible working options, that may be available and suitable for both sides’. It also adds that, ‘It may be helpful to discuss whether a trial period may be appropriate to assess the feasibility of an arrangement.’
3. Acas now makes clear that there is no statutory right to be accompanied at a flexible working discussion. However, it says this is good practice and has retained the advice to let trade union representatives (not just work colleagues, as it currently recommends) act as companions if the employee reasonably requests this.
4. It states that there’s also no statutory right to appeal a decision to reject a flexible working request. However, again, it says this is good practice and sets out what you ‘should’ do so the employee has the option to challenge the decision.
5. The initial draft said that, where possible, larger organisations should appoint a different manager to handle an appeal. The revised version removes the reference to larger organisations and recommends handling appeals in this way ‘wherever possible’.
6. For now, Acas has removed the section on the right to request a more predictable working pattern, as this now isn’t expected to come into force until autumn 2024.

What to Do Now

The Code is still in draft form while it awaits parliamentary approval and is only expected to come into force in April. For the time being, you should therefore continue to comply with the existing Code of Practice.

The revised code is, however, unlikely to change further. You should therefore familiarise yourself with the contents. You should also refer to the new wording when you brief managers in the new rules and when you update your flexible working policy. Despite the revisions, it would seem risky not to offer employees the option of bringing a trade union representative or colleague to their consultation meeting if you’re considering rejecting the request. Similarly, it’s likely to be difficult to justify not offering an appeal, ideally held by a different manager from the original decision maker.

Acas is also intending to publish non-statutory guidance to accompany the Code, so you should look out for this. I’ll alert you when this is issued. I’ll also create a revised sample flexible working policy before the changes come into force. You’ll be able to access this on your Online Resource Centre at: www.thehradviser.co.uk/resources

 

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

5 Steps to Reduce Your Organisation’s Risk of Noise-induced Deafness

According to Health and Safety Executive statistics spanning 2020 to 2023, 11,000 workers presented with work-related hearing problems and 85 new cases of occupational deafness were identified in 2022. In the last 10 years, the reported number of cases of work-related deafness has affected 760 men and only five women, the difference likely due to smaller numbers of women working in noisy environments.

To keep your employees safe and to comply with the Control of Noise at Work Regulations 2005, here are some key steps you can take.

1. Find Out if You have a Noise Problem

There are a few pointers to look out for which might indicate your organisation has a problem with noise. For example:

• If the noise is intrusive for most of the working day e.g. as noisy as a busy road, a vacuum cleaner or a crowded restaurant.
• If your employees have to raise their voices to carry out a normal conversation when they are about 2m apart for at least part of the day.
• If your employees use noisy power tools or machinery for more than 30 minutes each day.
• If your sector is one known to involve noisy tasks e.g. construction, demolition, woodworking, engineering, forging or stamping, canning or bottling, waste and recycling.
• If there is noise due to an impact such as hammering, drop forge, pneumatic impact tools, explosive sources, detonators or guns.

2. Conduct a Risk Assessment

Ensure that a trained and competent person undertakes a noise risk assessment to establish the noise in the working environment and the levels that individuals may be exposed to. 

The risk assessment will help you understand your noise levels and exposure times so that you can assess whether you are putting your employees at risk and if you need to take further action to comply with the law. The risk assessment should provide you with reliable representative estimates of your workers’ daily personal noise exposure (daily dose) which could be a combination of how loud and how long people are exposed to the noise.

3. Understand when You Should Take Action

The noise Regulations outline exposure action values. These are the levels of noise exposure which, if exceeded, require you to take specific action. There are lower and upper exposure action levels:

• Lower exposure actions (in decibels) for a daily or weekly personal noise exposure = 80dB.
• Lower exposure actions for peak sound pressure = 135dB.
• Upper exposure actions for daily or weekly personal noise exposure = 85dB.
• Upper exposure actions peak sound pressure = 137dB.

4. How to Control Noise Levels

You should first think about removing the source of noise altogether e.g. housing a noisy machine where it cannot be heard by workers. If that’s not possible, explore other options such as using quieter equipment, screens, barriers, enclosures or absorbent material to reduce the noise. 

Ensure that equipment is well maintained. If all of these arrangements are not reasonably practicable or have not reduced the noise enough, then you should consider using Personal Protective Equipment (PPE) as a last resort.

5. Using PPE

Your PPE hearing protection should ensure that it reduces the noise effectively but does not make people feel isolated or put them at risk if they cannot hear warning sirens or instructions (e.g. fire drills). Your PPE supplier can advise you. 

If your noise levels are at 85dB or above, you must provide mandatory hearing protection zones and hearing protection that is comfortable, easy to wear and maintain along with the training on how to use and maintain it effectively. Examples of hearing protection could be in ear foam or silicone inserts, over ear hearing protection, such as defenders, or there could be a combination of both, if required. 

Giving a choice of different hearing protection helps people make the right choice for them and are so they are more likely to wear it. If your noise levels are at 80dB, then hearing protection should be made available to workers who request it. They will also need training in its use and maintenance.

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

New: Discover the Statutory Payment Rates for 2024/25

As an employer, you are obliged to pay statutory sick pay to employees who meet the qualifying conditions. You must also make statutory payments, such as statutory maternity, adoption and paternity pay to eligible employees. If you operate a contractual scheme, you must pay your employees at least the amount to which they would be entitled to receive under the statutory scheme. We explain the statutory rates applying for 2024/25 which have now been announced.

1. Statutory Sick Pay (SSP)

For 2024/25, the weekly rate of SSP is set at £116.75. You must pay eligible employees SSP at the relevant daily rate for each qualifying day that they are absent from work after the waiting days have been served. The daily rate depends on the number of qualifying days in the week and is simply the weekly rate divided by the number of qualifying days (broadly the employee’s normal working days). The table shows the daily (unrounded) rates for 2024/25.

Number of Qualifying Days	Daily Rate
1	£116.75
2	£58.375
3	£38.9167
4	£29.1875
5	£23.35
6	£19.4583
7	£16.6786

2. Statutory Maternity Pay (SMP)

SMP provides a measure of earnings replacement where a woman is absent from work as a result of pregnancy and following the birth of a baby.

SMP is payable for the maternity pay period (MPP), which is 39 weeks. However, the payment stops if the employee returns to work before the end of the 39-week MPP.

SMP is payable at 90% of the employee’s average weekly earnings for the first 6 weeks and at the standard amount or, if lower, 90% of the employee’s average weekly earnings for the remainder of the MPP. For 2024/25, the standard amount is £184.03 per week.

An employee who has average weekly earnings of at least £204.48 will receive the standard amount of £184.03 from the seventh week onwards where the payment weeks falls in the 2024/25 tax year.

3. Statutory Adoption Pay (SAP)

SAP is payable following the placement of a child for adoption. Like SMP, it is payable for up to 39 weeks.

The first 6 week are paid at 90% of the employee’s average weekly earnings. Thereafter, SAP is paid at the standard rate, which for 2024/25 is £184.03 per week or, if lower, 90% of the employee’s average weekly earnings.

4. Statutory Paternity Pay (SPP)

SPP may be payable on the birth or adoption of a child to the child’s biological father, the partner of the child’s biological mother, a person adopting a child, the partner of a sole adopter or an intended parent of child due to be born to a surrogate.

SPP is payable for 1 or 2 weeks at the standard rate or, if lower, 90% of average weekly earnings. For 2024/25, the standard rate is £184.03 per week.

5. Shared Parental Pay (ShPP)

An employee can opt to end their statutory or adoption leave early and convert the balance to shared parental leave (SPL), which can be shared with their partner. Where the full amount of SMP or SAP has not been paid, the balance can be converted to ShPP.

ShPP is payable at the standard rate or, if lower, 90% of average weekly earnings. For 2024/25, the standard rate is £184.03 per week.

6. Statutory Parental Bereavement Pay (SPBP)

SPBP may be payable following the death of a child under the age of 18, or if they have a still birth after 24 weeks of pregnancy. It is payable for 1 or 2 weeks at the standard rate (set at £184.03 for 2024/25) or, if lower, at the rate of 90% of average weekly earnings.