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I have worked in the same branch of a large retailer for over 10 years, on around 20 hours a week. I have been told that my working pattern will reduce to 14 hours per week, with the rest of my hours being offered at another outlet [I have not been informed of the location yet]. I have a child so this might be tricky. They have just hired a full-time staff member, however. My contract says they can change my work pattern and I can be asked to work permanently or temporarily at another branch. What are my rights?
Your employer does not have carte blanche to make wholesale changes to your working pattern and much will depend on the specific wording of your contract of employment. I note that your contract states that your shift-pattern can change and you can be ‘asked to work at another branch temporarily or permanently’. Such clauses are known as ‘flexibility clauses’ and give your employer certain rights to ‘alter’ your hours and place of work. In practice, such terms are commonplace, yet their operation can be restricted because they tend to be interpreted restrictively by courts and tribunals.
In light of the above I would suggest you carefully consider the wording of the flexibility clause in the contract. The wording of the clause in your contract will have to ensure that the changes your employer wishes to make are adequately covered. Any ambiguity will be resolved in your favour, as it is established that widely-drafted clauses of a non-specific nature cannot be relied on to make a desired change. Any attempt by your employer to enforce a widely-drafted clause could lead to a breach of the overriding implied term not to act in such a way as to destroy the mutual trust and confidence between you and your employer. If you resigned in response to such breach, you could have a claim for constructive unfair dismissal. I would always advise you to take specific legal advice before resigning from your employment.
In addition, you may have grounds to argue that, as you have worked in the same store for the past 10 years, your current place of work has crystallised into a contractual term through custom and practice and any change would be a breach of your set contractual terms. You could also argue that any variation to your shift-pattern and place of work would amount to sex discrimination due to your childcare commitments. It would then be up to your employer to objectively justify the operation of the flexibility clause as a proportionate means of achieving a legitimate aim.
I would suggest that you hold an informal meeting with your employer to raise your concerns. If this does not solve the problem then I would recommend that you raise a formal grievance about the way your employer has handled this situation. If this does not resolve the issue then I would recommend you take further specific legal advice. Please note that a claim for sex discrimination has to be submitted to an employment tribunal within three months of the act of discrimination. You will also need to go through the Acas early conciliation process before any claim can be lodged.
Should you require any further clarification on the above points then please do not hesitate to contact Tracey Guest on 0161 672 1425.
*Helen Frankland assisted in answering this question.