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I have been at my place of work for over 20 years. I was initially employed full time, but, since having children, I was working three days a week, generally from 8am-4pm.
Since the pandemic I have worked from home 8am-3pm due to childcare issues. Now my work have asked that staff
revert back to 9-5 which makes it very difficult to juggle working and childcare even though I
am based at home for the time being. I am not the only one being asked to do 9-5 – a colleague who has no children worked 8.30am-4pm during the pandemic. They are suggesting we split the cover between us, but I can’t do that due to school pick-ups. What can I do?
An employer’s right to change an employee’s hours is affected by a number of factors, including the employee’s contractual terms and the nature of the change.
I note you say that after having children you began working three days per week from 8am to 4pm (your “post maternity hours”). If that was a permanent change agreed with your employer, with no indication that it was temporary, those would be your contractual hours and can generally only be changed again by further agreement. If your hours moved to 8am until 3pm during the pandemic also on a permanent basis agreed with your employer (your “pandemic hours”), then those would have become your permanent hours.
If your pandemic hours were just a temporary measure, your employer can ask you to revert to your contractual hours, which may well be your post maternity hours, subject to the agreement you had in place when you started doing those hours (as mentioned above).
When it comes to making changes to contractual terms, there are some circumstances in which an employer can do this without agreement from the employee, but it depends upon the terms of the employment contract. If your contract does not allow for the proposed changes, then your agreement is usually required.
You may have heard in the news about employers who exercise “fire and rehire” tactics. This is where the employer terminates the existing employment contract and offers re-engagement on new terms. Some employers choose to unilaterally impose the change and wait to see how the employee responds. In each of these cases, an employee may have claims for, amongst other things, unfair dismissal and breach of contract, unless the employer can justify the change on business grounds and show that its actions are reasonable.
It is generally recognised that more women than men in our society hold the main childcare responsibilities. This potentially allows you to argue that your employer is indirectly discriminating against you by insisting that you increase your hours to 9am until 5pm.
An employer is generally required to look at other ways of organising work so as not to discriminate against the individual with childcare responsibilities. In your case, if you have been working for some time on your post maternity hours without any difficulties arising, you may have a strong argument that the change isn’t necessary, as there is clear evidence to show that your working pattern is achievable. If your pandemic hours were a temporary measure and it was understood that everybody would return to their pre-pandemic contracted hours, it seems that there would be a further argument that your colleague should return to her pre-pandemic hours too. As those hours would cover the required period, this could be argued to be an entirely reasonable alternative open to your employer to utilise in place of insisting that you amend your hours.
Speaking to your employer about your childcare needs will help them to understand your circumstances and perhaps direct them to begin looking at alternatives. If that doesn’t succeed, and you are told that your hours will be changing, you should then consider raising a formal grievance. Ultimately, if you are forced to change your hours, you may have a claim against your employer, and it would be prudent to obtain bespoke advice from a solicitor.
*Marie Horner is a partner and experienced employment law solicitor at Langleys Solicitors in York. She is also CIPD qualified in HR management.