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Can an employer use a consultation process for restructure to force you to increase your working hours, thereby overiding a flexible working agreement which states a fixed number of hours and says the reason is to allow me to pick up my child from school? The manager is saying that the agreement was made many years ago, implying that my child is older and shouldn’t need picking up. My manager said the service needs of the department have changed and that my hours are not in line with the other staff and other staff manage with other childcare arrangements. I am not in the restructure group who are being forced to work extended hours, but because I am the only one in my group with shorter hours my manager says I have to change my hours too. I have not been part of the consultation on the restructure though as my group is mainly unaffected.
I note that you have previously agreed your working hours through a flexible working agreement with your employer. However, I understand that this arrangement was put in place in order that you could pick up your child from nursery. Your child is now at senior school.
You are querying whether or not your set working arrangement can be changed during a consultation process.
Your employer could argue that it only agreed to your flexible working request and your part-time hours on a temporary basis. However, given that this arrangement has been allowed to continue for some years, you would have a strong argument that, by implication and by custom and practice, your current hours have now become your permanent fixed hours of work.
Your employer can only change your working hours with your consent. If you do not consent straight away, your employer is likely to undertake a consultation process with you. This will be with the aim of securing your consent to the contractual change. Your employer should meet with you and discuss it proposals, listen to your concerns, deal with any questions etc. If you then consent to the change in your working hours, this change is then likely be documented and this will be a permanent change to your contract of employment, on the terms agreed.
If, however, you do not agree to the change in your terms and conditions by the end of the consultation process, your employer then has a number of options. Your employer may decide that it is not worth the upheaval of pushing through a change in your contractual terms. It may therefore drop the issue and allow you to continue on your current working pattern. However, if your employer feels that it has done all that it can to try to secure your consent and feels that it does really need to push through the change, your employer may decide to impose the contractual change on you. If it does so, you will then have a number of options. These will include remaining in your position, but making your objections to the change clear. You could then consider pursuing your employer for breach of contract. This is known as standing and suing. You may alternatively decide to resign from your employment and claim constructive unfair dismissal. Whether or not you would be successful in this claim will very much depend on the extent and importance of the contractual change and the process that your employer has gone through in order to try to secure your consent.
Another option for your employer, rather than imposing the contractual change, would be to terminate your existing contract of employment and issue you with a revised contract of employment on the new terms. The termination of your employment will be a dismissal for unfair dismissal purposes. However, any compensation that you would be awarded by a Tribunal would be limited due to the fact that your employer has straight away issued you with a revised contract and that this would allow you to reduce your losses straight away. Whether or not you would in fact succeed with an unfair dismissal claim would depend on the process that your employer has followed in order to try to secure your consent to the change in contractual terms.
When considering any complaint from you, a Tribunal: –
I hope that the above is of assistance. If you have any further queries please contact Tracey Guest on 0161 672 1425
*Helen Frankland assisted in answering this question.