Flexible Working
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Asked to work bank holidays and weekends: ask the expert
I am currently working on a shift pattern mon – sat 40hrs. I started with this company nearly 2 and a half years ago working a 1:4 weekend as stated in an email from the head of department. In my contract it says ‘full participant in rota system mon-sat to suit the needs of the business’ and that ‘it is your responsibility to arrange alternative cover with your line manager’. My holiday entitlement is 28 days inclusive of bank and public holidays. We have always had to work occasional Sundays for a few hours, and over a year ago the company asked us to work bank holidays for a few hours as well. We did this even though none of us were really happy to, but they said if not they would open up the business on these days if we didn’t. Now they have lost a nurse to maternity leave. They are not replacing her which now means we will have to work more weekends. I have a problem with childcare. My mum works every other weekend, but agreed to look after my daughter based on the 1:4 rota. My daughter also goes to swimming and ballet classes which have already been paid for. I have been told it’s not their problem and I will have to sort childcare out. My daughter is only 2 and has mild cerebral palsy. I can’t afford to pay for extra childcare and need advice!!!!!
It is not clear what the terms of your contract are in respect of working hours. You mention that you have always worked 1:4 “weekends” and that you have “had” to work the occasional Sunday.
The starting point would be to determine what the true terms of your contract were and whether your employer had reserved the right to change your working hours and days. If you are not contractually obliged to work Sundays you would be in a stronger position to challenge this.
An employer cannot unilaterally vary the terms of an employee’s contract of employment relating to working days without facing the potential risk of a breach of contract claim or a claim for unfair constructive dismissal. Even if your employer had the contractual right to vary your working days, they are still obligated by law to properly consult with you regarding this.
An alternative option for you would be to put in a Flexible Working request given that you have childcare responsibilities. A change to the times and days when you are required to work is a good example of a typical request. You must submit the request in writing setting out the changes you need, in your case it would be that you only work a 1:4 weekend shift.
You must also specify that you have an entitlement to make the application as set out in the Employment Act 2002 and the effect that the proposal will have. Following the submission of your request there is a very detailed statutory procedure which your employer must follow and they can only refuse your application based on the following reasons:
The burden of additional costs to the business
A detrimental effect on the ability of the business to meet customer demand as a result
Their inability to subsequently re-organise the work amongst existing staff
The current inability to recruit additional staff to fill any gaps
The detrimental impact on the quality of service if they agreed to the request
The detrimental impact on the performance of the business
Insufficiency of work during the periods that you propose to work
Any planned structural changes
I would recommend that if you proceed with this option that you submit your Flexible Working request soon as from 30th June 2014, your employer will no longer be legally obligated to follow the above statutory procedure. Please note also that you can only make one such request within a 12 month period.
If your employer refuses your request, given that working more weekends will put you at a disadvantage in relation to your childcare responsibilities, you may potentially have a case for indirect sex discrimination at this stage.
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Comments [1]
Anonymous says:
Hi
Can you help me in answering this question
I work in a social club on a 5 week rota, & all has been good for the past 2 years
My employer has now said that all employees have to work an extra 2 hours once every 5 weeks without any extra pay.
There was no consultation with employees it was just added onto our rota & told we would have to work it.
1 employee has already handed in his notice Because he was told he would have to work the extra hours unpaid but he refused.
The reason that was given by the employer was: that employees only worked between 33- 39 hours per week & the extra 2 hours was still within 40 hours they said that we were obliged to work every week.
When this new work rota started aprox 2 years ago it was agreed both by the employer & employees
its true that employees only work between 33-39 hours per week but employees agreed to work Monday – Friday without having a break within their shift & the extra hours was to include a 1/3 hour break per shift for these 5 days & that was agreed by the employers.
The total hours worked by each employee over the 5 week rota is 181.00 hours & with the breaks added in comes to 199.75 hours
Hope you can help
Regards
H
Editor: Do you have any of this in writing as an agreed contract or was it just agreed verbally? If so, what does it say about your hours on the written contract?