Commercial/Employment UPDATE

Issue No.2 September 2004

Flexible Working Requests - Is there an automatic right?

The Flexible Working Regulations 2002 do not grant employees an automatic right to flexible working. They do however require an employer to follow a statutory procedure when he receives a request for flexible working from a relevant employee. A relevant employee is one who is a parent, legal guardian or adoptive/foster parent of a child under 6 and who has a minimum of 26 weeks’ service. The following procedure must be strictly followed:

• The employer must meet with the employee within 28 days of the request.
• The employer must provide a written decision within 14 days of any meeting, either agreeing with the request or stating the reasons for refusal.
• The employee can appeal within 14 days of the written decision. The employer must then meet with the employee within 14 days of the appeal and make its decision within a further 14 days.

It should be noted that an employer can only refuse a request on one of the grounds specified by the Regulations. If an employer fails to comply with the Regulations, then a tribunal may award the employee up to eight weeks’ pay and direct the employer to consider the request again properly.

Maternity Rights- Are you up to speed?

An employer’s obligations under a pregnant employee’s contract of employment continue during maternity leave with the exception of obligations relating to remuneration. These obligations include the implied term of trust and confidence owed by an employer. In the recent case of Visa International Service Association v. Paul IRLR [2004] 42 EAT, the failure to notify an employee of a vacancy for which she would have applied was held to amount to a fundamental breach of the employer’s implied term of trust and confidence. This allowed the employee in this case to resign and claim constructive dismissal even though she did not have the relevant experience to be shortlisted for the vacancy. Employers should bear this in mind and should ensure that they continue to communicate with employees during their maternity leave.

N.B. All employers should also have implemented the changes to the Maternity policies necessitated by the Employment Act 2002.

Simplify your Corporate Administration - The elective regime

Private companies may wish to adopt the “elective regime” to simplify their corporate administration. If an elective resolution is passed (by all the company’s shareholders) the company’s corporate administration can be simplified in some or all of the following ways:

• By dispensing with the requirement to lay the company’s accounts and reports before the company in general meeting each year;
• By dispensing with the requirement to hold an AGM;
• By specifying the majority required to authorise the holding of a general meeting or class meeting at short notice;
• By dispensing with the requirement to appoint auditors annually;
• By granting authority to the directors to allot shares for an indefinite period or for a fixed period greater than 5 years.

The elective resolution can be revoked at any time by ordinary resolution (i.e. simple majority of the shareholders).

FINAL REMINDER!! New Statutory Disciplinary and Grievance Procedures

All employers should be aware of the new procedures, which come into effect as of 1st October 2004, when considering disciplining or dismissing an employee or dealing with an employee’s grievance. All employers should also have revised their employment documentation to reflect the new procedures. There are significant consequences for employers failing to comply with the procedures and for failing to have appropriate documentation in place.

Note:

Please note that this newsletter is not intended to be a comprehensive statement of the law and should be used for guidance purposes only. If you require specific legal advice please contact Mark Machray or Edward Bond or by telephone 020 7493 2903.