August 2023 - Tees Law

The Employment Relations (Flexible Working) Act 2023

Posted on 21 August 202310 July 2025 by Sarah O'Sullivan

The Employment Relations (Flexible Working) Act 2023, which received Royal Assent in July 2023, is intended to give workers more flexibility over when and where they work. This legislation is expected to come into force in the summer of 2024, based on the timescale from Royal Assent.

Chartered Institute of Personnel and Development (CIPD) research (Flexible and hybrid working practices in 2023 | CIPD) indicates that 40% of employers have seen an increase in requests for flexible working following the Covid-19 pandemic, and 66% of organisations saying they believe it is important to provide flexible working as an option when advertising jobs.

Employers and employees should therefore be mindful of the looming changes to the process surrounding flexible working requests.

Who can make a flexible working request?

Employees with at least 26 weeks of continuous employment are currently entitled to make flexible working requests to their employer. It should be noted, however, that although this has remained a requirement under the new legislation, it is anticipated that further legislation will eventually be implemented to remove this requirement, making flexible working requests a day one right for employees. Of course, any employee can make a request but employers are not obliged to consider requests unless made by eligible employees.

What are flexible working requests?

Flexible working requests should be made when an employee wishes to make a change to any of the following:

the hours they work
the times when they are required to work
the place they work (i.e. working from home, or another of the employer’s sites).

Some examples of how these changes could be implemented in practice include:

reducing hours to work part-time
changing start/ finish times
compressing hours to work the same number of hours over fewer days
job sharing.

Employees can also request the change be limited to specific days or weeks only (e.g. only during school term time), or for a limited period such as 6 months only.

How an employee can make a flexible working request

To meet the statutory requirements of a formal flexible working request, applications should:

be made in writing
be dated
state that it is an application made under the statutory procedure
specify the change the employee is seeking
specify when they wish the change to take effect
state if and when the employee has previously made an application.

An important change in the new legislation is, previously, there was an additional requirement for the employee to explain the effect that flexible working would have on the employer, and how the employer might deal with such an effect. This requirement has been removed by the new legislation.

How an employer should deal with a flexible working request

Under the new legislation, employers are required to deal with requests within two months of receipt (as opposed to the previous three months), unless both parties agree to extend this period.

Employers must deal with flexible working requests in a reasonable manner, and can only refuse requests for the following reasons (which remain unchanged under the new legislation):

the burden of additional costs
detrimental effect on the ability to meet customer demand
inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
Insufficiency of work during the periods the employee proposes to work
planned structural changes.

The new legislation also requires employers to consult with the employee before refusing a request. The new legislation does not provide guidance around what is required in such a consultation, but the ACAS Code of Practice does contain some guidance around this. The ACAS guide also has content covering dealing with requests in a “reasonable manner”. ACAS is currently in the process of updating this code.

If a flexible working request is accepted, the employer should issue an updated statement of main terms or provide a statement of changes to employment (under section 4 Employment Rights Act 1996).

If the request is denied, the employer must write to the employee stating this, keeping in mind that under the new legislation, the employee must be consulted before a request can be denied. Employers should note that although there is no statutory right to appeal the decision, employees now have the right to make up to two flexible working requests within any twelve month period, so if an employee’s first request is denied, they are entitled to make another one.

Employers need to stay up to date

With CIPD research showing that 49% of employers were previously unaware of the impending changes to flexible working legislation (Flexible and hybrid working practices in 2023 | CIPD), employers should ensure that they are aware of the changes as set out above. They should also consider updating any existing policies and procedures relating to flexible working arrangements to ensure that they are in line with the statutory changes and new time limits.

With the new legislation anticipated to come into force next year, we understand the ACAS Code of Practice on handling requests for flexible working is also to be updated. The purpose of the ACAS code is to “provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner” (Acas consultation on the draft Code of Practice on handling requests for flexible working | Acas).

Employers should look out for updates in relation to the new ACAS code and ensure that they are now complying with the new statutory requirements ahead of the implementation of the new Act, whilst also keeping in mind the likelihood of flexible working requests becoming a day one right.

What could happen if I unreasonably refuse a flexible working request?

If a tribunal upholds an employee’s complaint concerning the handling of a flexible working request, you may be required to reconsider the employee’s application. Alternatively, or in addition, the employee may be awarded compensation, additionally, issues over flexible working could also lead to other claims (see below).

Sex discrimination claims and flexible working

A mishandled flexible working request might lead to a potential discrimination claim. For example, if your flexible working policy has a greater impact on one sex over another (or on one particular employee because of their sex) you may face claims of indirect sex discrimination.

The ACAS guidance on flexible working, mentioned above, recommends that employers and managers should avoid making assumptions when assessing flexible working requests. All requests should be assessed consistently and with regard to business circumstances.

However, acting consistently does not necessarily mean that you can adopt a blanket flexible working policy – accepting or refusing all requests. If a dispute arises, a tribunal will look at any discrepancies in the acceptances or refusals of flexible working requests.

If your policy is found to be indirectly discriminatory, it might be possible to argue that it was a proportionate means to a legitimate aim – i.e.: that there was a good business, commercial or administrative reason for the difference in treatment.

Consideration of flexible working requests should be based on real operational needs and decisions should be objectively justifiable.

Flexible working and constructive dismissal

In general terms, a constructive dismissal occurs where an employee feels forced to resign because of the actions of their employer.

To be successful in a claim, the employee must show that their employer has committed a fundamental breach of contract that is sufficiently serious to justify the employee’s resignation – and that the resignation was due to that particular breach. The breach could be a one-off event or just one instance in a longer history of events.

Unreasonably refusing an employee’s flexible working request, or even handling a reasonable refusal badly, could constitute one of these events and expose you to a potential constructive dismissal claim.

When medical negligence becomes criminal

Posted on 16 August 202310 July 2025 by Sarah O'Sullivan

Medical negligence arises when the treatment provided by a healthcare professional falls below the standard of a responsible body of medical opinion and that substandard care has caused harm or injury.

In some cases, however, a doctor’s actions go so far beyond what is considered acceptable that their behaviour is deemed to be criminal.

Our medical negligence specialists provide expert legal advice for a wide range of medical negligence claims.

If you think the medical treatment that you have received has been negligent or even criminal, Tees can help you to recover compensation for the harm that you have suffered.

Deliberate negligent acts resulting in criminal conviction

In rare cases, doctors treat their patients in ways that go far beyond medical negligence. In these circumstances, their actions can only be treated as a deliberate attack on their patients.

In 1993, Beverley Allitt, known as the “Angel of Death” was given 13 life sentences after being convicted of murdering four children and in 2000, Harold Shipman was found guilty of murdering 15 of his patients and is thought to have had over 200 victims.

A recent example is the case of surgeon Ian Paterson.

What did Ian Paterson Do?

Ian Paterson was convicted of 17 counts of wounding with intent in April 2017 and is currently serving a 20 year prison sentence. Paterson had performed unnecessary surgeries on over 1,000 patients in the Heart of England NHS and private hospitals (Spire Parkway and Spire Little Aston). These procedures included hernia surgeries, varicocele repairs, unnecessary mastectomies leaving his victims feeling violated, mutilated and psychologically traumatised. He also performed unregulated “cleavage-sparing” mastectomy procedures, leaving breast tissue that often resulted in the return of the cancer and, in some cases, the death of the patients.

In February 2020 a report from an Independent Inquiry was published.

It is estimated that Paterson treated more than 11,000 patients. Of these, more than 750 have so far received compensation for the damage he caused to them in a settlement deal struck in 2017, involving some 40 law firms. However, many more may have been affected by his actions and that they too may be due compensation.

In December 2020, more than 5,000 patients were contacted by Spire Healthcare after independent clinicians reviewed their medical records. Patients were offered a telephone meeting and follow-up treatment, and Spire Healthcare have set up a new compensation fund for victims of Ian Paterson. Tees is pleased to help former patients of Mr Paterson who have been recalled by the Spire to claim compensation from the second compensation fund, if they did not apply for compensation from the initial fund for the same injury.

Failing to provide safe care and treatment

In April 2021, East Kent Hospitals NHS Trust pleaded guilty to a criminal charge brought by the Care Quality Commission (the CQC) over failings that led to the death of Harry Richford, at 7 days of age. Harry was delivered by emergency caesarean section performed too late by a locum, a second doctor delayed resuscitating Harry and he died from irreversible brain damage.

The CQC charged the Trust with breach of regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which obliges trusts to provide safe care and treatment.

Again in July 2021, The Independent reported that the CQC is considering a criminal prosecution against Nottingham University Hospitals Trust, following the death of baby Wynter Andrews in September 2019.

When does a lack of consent give rise to a criminal case of battery or assault

If a patient has not given informed consent to a medical procedure both medical negligence and criminal liability may arise.

Informed consent is a relatively complex legal concept, but the over-riding principle is that a patient has the right to be advised of not only the benefits but also the material risks of the proposed treatment and be made aware of any reasonable alternatives (including doing nothing). Consent issues normally arise in the context of surgery but should be considered when any treatment is offered.

If a patient has not consented to the medical treatment, this could lead to a criminal charge for battery or assault. This requirement for consent is waived if the patient:

is unconscious or incapacitated and needs emergency life-saving treatment
needs an additional emergency procedure during an operation
lacks capacity to consent to treatment of their mental health due to their mental health condition (but consent is still required for treatment for unrelated physical conditions)
has been detained under the Mental health act
is a public health risk due to having Rabies, Cholera or TB

Once more, it is the Police and Crown Prosecution Service that determine whether it is appropriate to bring a criminal case against a doctor in these circumstances. Intent to harm is likely to be very relevant and more often than not a civil suit will be more appropriate.

Criminal gross negligence (medical) manslaughter

The crime of gross negligence (medical) manslaughter arises where death occurs as the result of “truly, exceptionally bad” healthcare.

Usually a criminal investigation is triggered by the Coroner referring the case to the Police for investigation, although families can also ask the Police to look at the circumstances of death. The CPS will consider whether it is in the public interest to prosecute the relevant medical professional including whether they consider that prosecution is a proportionate response. The case will be decided by a Jury, in a criminal court. To secure a conviction, the Jury must be satisfied, beyond all reasonable doubt, that the individual or Trust committed the crime of gross negligence manslaughter. A conviction may result in a custodial prison sentence.

How do you prove gross negligence manslaughter?

In 1994, an anaesthetist called Adomako was convicted of gross negligence manslaughter. Adomako hadn’t noticed that a patient’s oxygen pipe had become disconnected during an operation. Consequently, the patient died.

The judge in this case set out the test for gross negligence manslaughter:

there must be a duty of care
the defendant must have breached that duty of care
the breach must have caused the death of the victim and
the breach of duty is so serious in all the circumstances that it should be judged criminal

The judge also gave some examples of what might constitute a criminally serious breach:

indifference to an obvious risk of injury to health
knowing the risk of injury to health at the outset but a determination to run the risk nevertheless
knowing the risk of injury to health and intending to avoid it but coupled with such a high degree of negligence in attempting to avoid injury that a jury deems a charge of criminally serious breach as necessary

Gross negligence manslaughter conviction examples

in 2007 Dr Stevenson, a GP, who injected his patient with six times the required dose of diamorphine for a migraine, admitted manslaughter but was spared jail
in 2015 Dr Bawa Garba a trainee doctor, was found guilty of gross negligence manslaughter when she failed to diagnose and treat sepsis leading to the death of a 6-year-old boy, Jack Adcock
however in 2016, a Boots optometrist, Honey Rose who had missed signs of a lethal build-up of fluid on 8-year-old Vincent Barker’s brain, which tragically resulted in the his death, had a conviction for manslaughter overturned.

In this final example, the judge stated that: for gross negligence to be found, there must be a “serious and obvious risk of death”, rather than just risk of serious injury. The risk must be “assessed with respect to knowledge at the time of the breach of duty”.

The line between negligence and gross negligence is therefore still hard to define.

Corporate manslaughter and corporate homicide

The Corporate Manslaughter and Corporate Homicide Act 2007 means that organisations can be found guilty of the office of corporate manslaughter or homicide.

In a medical context, NHS Trusts may face criminal prosecutions if a patient dies as a result of gross negligence. If found guilty, the healthcare Trust may be fined or ordered to take steps to remedy any deficiencies in health and safety policies, systems or practices.

A series of baby deaths at the East Kent Hopsitals University Trust has recently prompted a police investigation into a possible corporate manslaughter and/or gross negligence manslaughter charge relating to unsafe maternity care that has affected nearly 200 families over a number of years. The Health and Social Care Committee on maternity safety in England has now released a report on the Safety of Maternity Services in England. The report concludes that improvements in maternity services have been too slow, with the CQC’s Chief Inspector of Hospitals reporting evidence of a ‘defensive culture’, ‘dysfunctional teams’ and ’safety lessons not learned’. Sound familiar? MPS have recommended urgent action to address staffing shortfalls in maternity services with staffing numbers identified as the first and foremost essential building block in providing safe care.

How Tees can help

If you or a close family member have suffered harm from negligent medical treatment, please get in touch. We will investigate what happened, advise you on your potential claim, and support you in bringing a claim.

We know that going through something like this alone can be a daunting and worrisome prospect, but our empathetic and caring team is here to help you secure the best outcome.

What’s the difference between Section 106 agreements and the Community Infrastructure Levy (CIL)?

Posted on 1 August 202310 July 2025 by Sarah O'Sullivan

When new developments happen developers are usually asked to pay a contribution towards the funding of associated infrastructure. Historically this was through ‘Section 106’ agreements negotiated between local authorities and developers although the Planning Act 2008 introduced a new way of doing this – the Community Infrastructure Levy, or CIL.

Section 106 agreements

S106 contributions remain the primary means to ensure that developments pay for infrastructure that supports them. However S106 agreements are by their nature uncertain in terms of what they can deliver. S106 contributions are negotiated between the local authority and the developer and can pay for anything from new schools or clinics to roads and affordable housing.

The Community Infrastructure Levy (CIL)

Introduced by the Planning Act 2008, local authorities are allowed but, not required, to introduce a CIL. CIL is different to S106 payments in that it is levied on a much wider range of developments and according to a published tariff schedule. This spreads the cost of funding infrastructure over more developers and provides certainty as to how much developers will have to pay. It is simpler and more transparent.

CIL is now the preferred method for collecting pooled contributions to fund infrastructure. S106 agreements have been scaled back to just cover site regulation and site specific issues (whether or not the local authority has introduced a CIL) and are subject to a statutory test since 2014. CILs cover the generic payments that a development imposes.

CIL only applies in areas where a LPA has a charging schedule in place which sets out its CIL rates. Any local authority that charges the levy must publish a charging schedule on its website. Since CIL is a discretionary charge, there continues to be a phased take-up of CIL by local authorities, but local authorities continue to be encouraged to adopt a CIL.

The advantage of the CIL is the rate is transparent and does not need to be negotiated. To ensure developers do not pay for the same infrastructure under both schemes, local authorities are required to publish a list of what will be funded by the CIL and those items cannot be covered by a S106 agreement.

CIL is paid primarily by owners or developers of land that is developed. In an area where CIL operates, most new development which creates net additional floor space of 100 square metres or more, or creates a new dwelling, is potentially liable for the levy. Some development is eligible for relief or exemption from CIL such as residential extensions and houses and flats which are built by self-builders. There is however a strict criteria that must be met and procedures followed to obtain the relief or exemption.

Tees are here to help

We have many specialist lawyers who are based in:

Cambridgeshire: Cambridge
Essex: Brentwood, Chelmsford, and Saffron Walden
Hertfordshire: Bishop’s Stortford and Royston

But we can help you wherever you are in England and Wales.