Can I refuse to be on call at weekends?

I have worked at my current company for over four years. My current contract states my working hours. During the course of my employment, I was promoted and I have a letter stating a T&C change (new job title and salary). Therefore I believe my old contract hours still stand. As part of my new role, I am required to work one weekend a month, but this has been very light. I am currently on maternity leave and have recently had a flexible working request declined. I have also been told that I now need to cover every other weekend ‘on call’ (need to have phone and laptop near me) and that that work is much more than the previous weekend work. My contract state my normal hours of work as five days a week. It also states things such as  “the Employer reserves the right to vary the Employee’s hours of work according to the needs of the business”. I was told at the promotion interview that I might have to do occasional weekend work. Can I refuse to be on call? I am worried that this will be of detriment to my family life. My husband works Mon-Fri too so we just have weekends with our son together.

Further to your promotion, your working hours have remained as five days a week. However, you are also required to work one weekend a month. These are therefore your agreed contractual working hours.

You say that you have now been asked to work every other weekend which you worry will detrimentally affect your family life. Your contract of employment contains flexibility clauses regarding your hours of work. However, this clause would be interpreted narrowly and your employer needs to act in accordance with the implied terms of your contract of employment, namely the implied duty of trust and confidence. My view is that your employer could well be in breach of this term by imposing the change in your hours of work to such an extent, given the detrimental impact on your family life. You could argue that this extensive change requires your consent and that you do not consent due to the impact on your family life. Imposing this extensive change on you could be in breach of your contract of employment. It could also be such a fundamental breach to entitle you to resign and claim constructive unfair dismissal. I would always advise you to take specific legal advice before you resign from your position however. Furthermore, your employer’s actions in imposing the change could constitute sex discrimination.

There are strict time limits for these claims in the employment tribunal. You must submit claims for constructive dismissal with three months of your resignation. For sex discrimination, you must submit your claim within three moths of the discriminatory act. For both actions, you need to go through the Acas pre-conciliation process before a tribunal would accept your claim.

As a first step, if your employer is intent on imposing this change to your working hours, I would recommend that you raise a formal grievance. If this does not resolve the matter, you should take further specific legal advice in relation to potential claims.

You also state that you have submitted a flexible working request, but that this has been declined. I would need further information to be able to advise fully. However, as an employee you have the legal right to request flexible working so long as you have at least 26 weeks’ continuous employment at the date the request is made. Your employer is under a duty to consider the request and can only refuse the request if there are good reasons for not being able to accommodate your request. Such reasons are:

  • The burden of additional costs;
  • Detrimental effect on ability to meet customer demand;
  • Inability to reorganise work amongst existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work; and
  • Planned structural changes.

Your request for flexible working should have only been declined on the basis of any of the above reasons. You have potential claims against your employer if your request was not handled appropriately. Again, there are strict time limits for such claims and you would need to go through the Acas pre-conciliation process. You may also have a further argument regarding sex discrimination if your employer hasn’t behaved appropriately in its handling of your flexible working request.

Please contact Tracey Guest on 0161 672 1425 should you require further assistance.

*Helen Frankland assisted in answering this question.

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