Changing shift pattern: ask the expert



Question

I have been employed in the retail business by my current employer for 17 years.  Since I had the first of my three children I have been working part time.  I returned from my last maternity leave two years ago and have been working the same working pattern since then – evenings and weekends.  My employer has recently decided to change my working pattern so I will have to use a childminder. I have managed to get a childminder, but cannot cover the summer holidays. I have therefore had to apply for flexible working so that I can be off over the school holidays. In the meeting with my employer they were very probing about my childcare arrangements. Are my employers allowed to do this? My line manager tells me if they offer it to me it would be probable that it would be on the understanding that my hours would be anywhere and everywhere through out the week with no fixed rota (they are just being awkward). The hours are due to change in the next week or two and I have not formally agreed to them and they were putting me under pressure to do so.


Answer by Ruth Renton

Your employer is seeking to change or vary your existing working hours. It is also seeking to take away some of the benefits you are used to receiving, like your travel expenses. It sounds as though they want you to agree to the changes although the bargaining position is slanted against you. You are being pressurised to consent to these changes yet you will be worse off because of the additional childcare costs and new hours.

Without being fully aware of all the facts and comments made, there may be potential claims available to you. However, I suggest that you obtain advice so that all the facts are available to the adviser.

You have also made a flexible working request to work term-time as your new childminder cannot care for your children in the holidays. I assume that you have made your flexible working request under the statutory right to request flexible working as contained in the Employment Act 2002. I am assuming that you prepared a detailed written application which not only specified your relationship to your child and your requested change to your working hours but also explained what effect your proposal may have on your employer’s business and your role and how it might be dealt with. I understand that your request has been rejected.

Dealing firstly with this request, under the law on flexible working your employer has a statutory duty to seriously consider your request. An application can only be refused on one or more of the following grounds:

1. burden of additional costs;

2. detrimental effect on ability to meet customer demands;

3. inability to reorganise work among existing staff;

4. inability to recruit additional staff;

5. detrimental impact on quality;

6. detrimental impact on performance;

7. insufficiency of work during the periods the employee proposes to work; and

8. planned structural changes.

If you believe that your request has not been properly considered you can appeal this decision under the flexible working procedure. I think that you may also have a claim for indirect sex discrimination as a result of the rejection of your term –time request- please see my comments below.

Dealing with the probing comments made by your employer in the context of your request; the potential unfair treatment by the forced change to your working hours and the rejection of your flexible working request, you may have claims for both direct and indirect sex discrimination under the Equality Act 2010 if you are able to establish that the unfair treatment was because of your sex and/or part-time status.

In order to make a claim for Direct Sex Discrimination, you would need to show that the comments made by your employer seem to indicate a bias against you as a mother- this will very much depend upon the facts.

It’s more likely that you may have a claim for Indirect Sex Discrimination. This is where an employer has applied a “provision, criterion or practice” which has the effect of disadvantaging one sex over another and for which there is no objective justification. In these types of case the discrimination is not necessarily overt but the effect of applying this provision is that there is a there is a disproportionate detrimental effect on employees of one sex. As a mother and woman, the changes to your working patterns will affect you detrimentally, particularly with the new childcare constraints.

In Indirect Sex Discrimination cases the employer has the opportunity to justify their decision- was there a good reason for taking that decision (known as objective justification). This will be dependent on the facts. In this case the employer will need to justify forcing the change in your shift patterns and also the rejection of your request.

You do not have to agree to the changes to your working patterns but your employer needs to explain to you the consequences of not agreeing. However, as this seems to be an unfair change, you can either arrange an informal meeting with your HR department and outline your concerns at this unfair treatment or you could raise a grievance under your employer’s grievance procedure. A grievance is a formal complaints procedure.

In any event I also suggest to seek independent advice, for the adviser to obtain the full facts and advise you.

RuthRentonPrior to establishing Renton Associates Limited, Ruth Renton has many years experience of advising both employers and employees on all aspects of employment law. CIPD trained, Ruth is also an experienced employment law trainer and has written and facilitated employment law and skills training, both in-house to employers and through public seminars. Ruth is a passionate believer in training staff to manage and work within the law, helping to create a positive diverse workplace while providing a defence for employers. Approachable and articulate, Ruth has advised a broad range of clients ranging from charities and the public sector to small owner managed businesses and FTSE listed companies. Qualified since 1995, Ruth’s background is City based (Eversheds, Allen & Overy and Orchard Solicitors). As a non-practising solicitor, Ruth views herself as an employment lawyer with additional skills. Ruth is also proud to be a working mum of four kids – her biggest challenge! Meet our Panel of Experts

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One comment

  1. Anonymous says:
    12/06/2014 at 12:00 am  

    Hi there.

    I am in the process of filling out the flexible working form but am unsure what to write about how will my new working pattern effect my employer and colleagues. I used to work 3 on and 3 off any 3 consecutive days of the week but now I want to work Tuesday and Wednesday 9.30 to 4pm and Thursdays until 1pm

    Editor: You need to think through what the implications might be for your employer and colleagues and whether they can cover the change in hours, etc. Basically this is designed to make you think through the request from the employer's point of view and anticipate any concerns they might have as flexible working is a two-way process.

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