27 December 2013
Flexible Working and the Employment Ordinance (Cont'd)
Avoiding the "global contract"
We have seen in earlier Bitesizes that in order to try to avoid an employee being entitled to EO benefits an employer must be able to demonstrate that:
- the employee did not work more than 18 hours for at least one week in any four continuous weeks, and
- that in any "light" week there was no arrangement in place for his absence (for example, an agreement that the contract continues, or some other reason for absence) which would enable a court to treat the employee's absence as being a "mutual arrangement" amounting to a "global contract" and therefore the employee being deemed to have worked in that "light" week.
One way of potentially avoiding the "mutual arrangement" implication is by setting out expressly in the contract what the arrangement actually is. So, for example, the contract could provide:
"notwithstanding any other provision in this contract it is agreed that the employee will not work more than 18 hours per week for 4 consecutive weeks."
This provision could then be used to challenge any suggestion that there was a "mutual agreement" (as required by paragraph 3(2) of Schedule 1 EO) that any time not spent working should be treated as "hours worked".
The obvious downside of including such a provision is that it will make what the employer is doing perfectly clear and, therefore, could be used against the employer from an employee relations perspective.