Can my shift be changed?

I currently work weekday nights in a warehouse. I am pregnant and my employer has been aware of this for some weeks. I have a risk assessment in place. I am employed through an agency and have been since last year. I received a text message today advising that from next week I must change my shift pattern to work Thursday-Monday as the warehouse is understaffed at weekends. I don’t have a written contract, just the initial communication stating that I would be working weekday night shifts. I have a very supportive husband and another child at home and this change to my shift would mean me not being able to spend any time with them at weekends, not to mention the many commitments I already have over the coming weeks at weekends. Is there anything I can do? I have asked to speak to someone, but have been advised that it has come from the warehouse operating company and the weekday night shift is no longer available.

When working for an agency, rather than being directly employed by the company you provide services for, your rights are more limited than a standard employee.

Under The Agency Workers Regulations 2010, where you have been undertaking the same role, whether this is on one or more assignment (different companies but via the same agency), for 12 continuous calendar weeks, you are entitled to the same basic working and employment conditions as a standard employee, employed directly with the company (not hired via an agency).

It does not matter that you do not have a written contract for the purpose of your rights in this scenario, a contractual arrangement can exist as a result of a verbal agreement and in your case it can also be shown that you have worked the same shifts since October. However, the lack of a written agreement can cause difficulties when a dispute arises.

If the original shift you worked on is genuinely no longer available, this could amount to a redundancy type situation. As an agency worker, you do not have the same rights as an employee in respect of your role being made redundant. This would include the shift that you work on no longer being required. In such scenario it would be your choice as to whether you work the alternative shift, or explain to the agency that the alternative shift is not suitable for you.

However, if the shift you originally worked on is still available and you believe that the only reason the company you are working with have changed your shift is due to your pregnancy, this could amount to an act of discrimination on the grounds of your pregnancy. You have the right not to be treated less favourably as a result of your pregnancy. It would be sensible to set out your concerns in writing by way of a formal grievance if you do believe that your shift pattern has been changed because you have informed the company of your pregnancy.

In addition to the above potential claim arising from the change of shifts, if the change in your shift pattern could impact on your ability to arrange childcare for the relevant times/days, you may have a potential claim for what is referred to as indirect sex discrimination. This is where you would be arguing that the decision to change your shift pattern places you as a female worker at a disadvantage due to your childcare responsibilities outside of work. This type of discrimination can be objectively justified in some cases, which means that the company may have a valid reason for discriminating against you in such a way. Whether the company can show that this change being applied to you was in fact objectively justified would very much depend on the genuine reason for them changing your shift. We would require further information on this in order to advise as to the prospects of bringing such a claim.

To conclude, your legal position in respect of your rights in this situation would very much depend on the business reason for the change in your shift pattern. If you feel that the above information regarding potential discrimination relates to you, you should consider setting out your concerns and that you believe you have been discriminated against, in the form of a written grievance. A grievance does not have to be written in a particular format. It should simply be your concerns in writing; be dated, setting out the reasons for those concerns, any relevant evidence and asking for a response from the company. You should send a copy of this grievance to the hiring company and the agency you are supplied by.

If you were looking to pursue a claim for discrimination in the employment tribunal, you should contact ACAS primarily to discuss the Early Conciliation process. This is a compulsory step you must take prior to submitting a claim to the employment tribunal. The time limit for bringing this type of claim where it is one act of discrimination (your shift change), would be 3 months less one day from the act of discrimination, subject to any extension granted by way of the ACAS early conciliation process.





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