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| Industry News |
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FLEXIBLE WORKING
July 2009
SHOULD THE CHANGES BE IN WRITING
You may have staff who have agreed to work flexibly in order to try to avoid a redundancy situation. Can you simply rely on an “ad hoc” verbal arrangement, or is it safer to put it in writing?
Verbal or written agreement?
In a previous article we introduced the idea of flexible working as a way to reduce the likelihood of having to make redundancies. Assuming that you have got sufficient staff support, the next stage is to confirm what’s been agreed. If the changes are mainly temporary you may be happy to rely on a verbal agreement. But, is this really enough to protect you, or would it be better if you confirmed the agreement in writing?
What are the issues?
Relying solely on a verbal agreement is risky/ / if there’s a disagreement later, it will be your word against the employee’s. For example, they could say that they never agreed to work flexibly.
Lying in wait. Alternatively, they could argue that they were pressured into the agreement and feared being made redundant if they refused. This could allow them to bring a constructive dismissal claim. If they were to do this and you did not have any evidence that an agreement had been reached, you would be in a weak position.
Forgetting what was agreed
There are also practical reasons for putting your temporary arrangements in writing. This is particularly relevant where several employees have agreed to some form of flexible working, be it reduced hours, taking a sabbatical or homeworking. If you don’t set out the terms in writing, you could waste a considerable amount of time trying to remember what arrangement was agreed for each one.
Risk
The absence of a written agreement may make it easier for an employee to argue that a more advantageous arrangement was agreed in their favour.
Contents of written agreement
Luckily, you don’t need a lengthy written agreement or to go about amending all your contracts. Instead, record the key changes in writing, give two copies to the employee which they should sign, returning one to you.
Tip 1. Draft a letter to each affected employee. It should state the type of flexible working arrangement that’s been agreed and its duration. If it’s subject to review make it clear.
Tip 2. If a pay cut is involved, e.g. due to a move to part-time working or the taking of a sabbatical, also set out how it will operate and the impact on bonuses and benefits etc.
What about permanent changes?
You may have agreed some flexible working arrangements that are intended to be permanent, e.g. an employee close to retiring may have opted for a “phased retirement” that allows them to go part time. Alternatively, an employee with care responsibilities may have used your offer as an opportunity to apply for formal part time work.
Formalities
In this situation, never rely on verbal agreements. This type of change should be formalised by updating their contracts.
It’s risky to rely on a verbal agreement. An employee could claim constructive dismissal on the basis that they did not agree to the changes/ / you would have no evidence to disprove it. Play it safe by drafting individual agreements, e.g. a letter, setting out what was agreed, its duration and any alteration to pay.
Source: Tips & Advice Personnel 11th June 2009
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