How can I get adequate rest between shifts?

I work 39 hours a week in 12-hour shifts. At the moment I could be working long days then back on wake-ins with no real consistency in the rota. Plus on the back to back wake-ins I’m lucky if a have two hours sleep before the next shift as my body doesn’t adjust that well. Lately I have become poorly for over a month with one illness after the other – my GP has stated I am run down and it’s work related due to inconsistent shift patterns. I was wondering what are my rights to ask to reduce my hours to 30 hours – two 12-hour shifts then a six-hour shift –  with a consistent rota pattern so I have adequate rest on days off.

I note from your question that you are wondering what rights you have to reduce your hours from 39 hours per week to 30 hours per week with a consistent rota pattern, so that you have adequate rest on your days off.

Making a flexible working request

You can make a written flexible working request to your employer to ask to amend your hours of work if you are classed as an employee and have at least 26 weeks’ continuous employment. Your employer must then consider the flexible working request in a ‘reasonable manner’ and in line with any flexible working policy they may have. Your employer should also make a decision within 3 months as to whether the request is accepted or not.

Accepting the request

If your request was accepted then your employer should write to you with a statement of the agreed changes and a start date for the new hours of work. They should also change your contract of employment and issue you with a new copy including the new terms and conditions.

Rejecting the request

Please note that your employer can reject a flexible working request for any of the following reasons:

  • extra costs that will damage the business
  • the work can’t be re-organised among other staff
  • people can’t be recruited to do the work
  • flexible working will affect quality and performance
  • the business won’t be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

Please also note that once you make a flexible working request then you are unable to make another one for a further 12 months. Generally speaking, employment tribunals do not question the commercial rationale or business reasons behind a decision to refuse a request, but consider whether the request was taken seriously and assess whether the decision was based on correct facts and whether the reason for any refusal fell within one of the permitted grounds listed above.

If your request was rejected and you felt that your employer failed to deal with the application in a reasonable manner then I would recommend that you appeal the decision. If this does not resolve the problem then I would suggest that you raise a formal grievance about the way your employer has handled the situation and take further legal advice to discuss your options.

Please be mindful that any claim made to an employment tribunal would need to be submitted within three months of the unlawful act. You would also need to go through the Acas pre-conciliation procedures before the claim would be accepted.

Rest periods

Please also note that under the Working Time Regulations (WTR) workers are entitled to a daily rest period of 11 uninterrupted hours in every 24-hour period and weekly rest of 24 uninterrupted hours in every seven-day period. At the employer’s choice, the weekly rest period can consist either of two uninterrupted 24-hour rest periods or one uninterrupted 48-hours of rest in every 14-day period.

There are limited circumstances under the WTR that allow certain workers to work during periods that would otherwise be classed as a rest period or a rest break. I am unclear from your question what exactly your job is, but one of these exceptions is where a worker is a shift worker changing shifts (such as from nights to days), which prevent the taking of a full daily or weekly rest period.

Where a worker is required to work during a period that would otherwise have been a rest period or rest break, the employer is under a duty, wherever possible, to allow the worker to take an equivalent period of compensatory rest. In exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, the employer should afford the worker such protection as may be appropriate in order to safeguard the worker’s health and safety.

If you feel that your employer is not complying with this duty then I would suggest that you raise the matter informally with them. If this does not resolve the problem then I would advise that you raise a formal grievance. If this does not then conclude matters to your satisfaction then I would recommend that you seek further independent legal advice to discuss your options.

Please note that you can complain to an employment tribunal about a failure to permit the exercise of a right to compensatory rest under regulation 24 of the WTR. Again this should be done within three months of the unlawful act. You would also need to go through the Acas pre-conciliation procedures before the claim would be accepted by the tribunal.

Should you require any further guidance on any of the issues listed above then please contact Tracey Guest of Slater Heelis LLP on 0161 672 1246.

*Helen Frankland assisted in answering this question.

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