Can you refuse to work if you have no child care organised?

Childcare Issues

I note from your question that your usual working hours are four four-hour shifts, but that your employer is insisting that you work a shift you don’t usually work to cover a holiday. I understand that you have explained to management that the specific day is not easy due to childcare issues, but that your employer has insisted that you work the shift on the basis that it has given you four weeks’ notice.

Whether or not your employer can insist on you working the new shift pattern depends on the terms of your contract of employment. This can be made up of written terms and terms which have been orally agreed or which have become your contractual terms through custom and practice over a period of time. The starting point would be to carefully review your written contract of employment and in particular the clauses relating to hours of work and changing terms and conditions. If your hours in your written contract are fixed (or they have become fixed because you have worked the same set hours over a period of time), then your employer should not change these without a contractual right to do so or without your consent. It may be that your employer has retained the right to adjust your shift pattern in your contractual terms and conditions so you need to check your contract carefully. You state that your employer has described your contract as ‘fully flexible’, which indicates that your contractual hours may not be fixed and that your hours are subject to change by your employer.

Even if your employer has the ability to alter your shifts, when doing so, it should act reasonably and take into account your ability to work the proposed shift. Ultimately, your employer may be breaching the implied term of trust and confidence in your contract of employment if it imposes a change of shifts when you have made it clear that you can’t work due to childcare commitments. This may also be discriminatory on the grounds of sex, as women are recognised by the law as ultimately having primary childcare responsibilities.

Flexible working application

I note that you state that you have submitted a flexible working application. Employees with at least 26 weeks’ continuous employment can make a request for flexible working . Your employer then has a three-month decision period (which can be extended by agreement) within which to consider your request. Your employer must deal with your application in a reasonable manner and can only refuse it for one (or more) of the eight reasons set out in the legislation. Given that your employer has three months to respond to your application, I would be concerned that it will not have been finalised by the time it is proposed for you to work the new shift. In the meantime, I would therefore advise you to submit a written grievance explaining your concerns, how you consider the imposition of the new shift to be unfair and the fact that you cannot work it due to childcare. If you do not have any success with your written grievance, I would advise you to take further specific legal advice in relation to a potential tribunal claim.

If you would like some further advice or guidance regarding any of the points discussed above then please contact Tracey Guest on 0161 975 3823.

*Helen Frankland assisted in answering this question.

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