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Can my work pattern be altered?
I currently job share and am contracted for 26 hours per week. I requested under what I believed to be flexible working legislation to work compressed hours over two half days and one Friday afternoon a month as this was the best way to fit work in with childcare. This was agreed and I have been working this pattern on set days for two years now. I missed a moving forward meeting that was scheduled in my absence and was only given a couple hours’ notice so could not find childcare to attend. I requested it moved to my next working day, but they decided it was best to go ahead and advised me afterwards that my current working pattern did not suit the needs of the role and I would be asked to work three normal 7.5 hour days – which means a reduction in hours and money, plus additional cost of childcare for the half day I currently do not work. When I questioned the reduction, they came back with an alternative offer of a three-day week followed by a four-day week to fit my 26 hours. This also isn’t a viable option for me as it would mean mean paying out childcare for four days every week. My current working pattern was put in place to fit my childcare and the new proposed hours really do not work for me. I believe my contract states hours can’t be changed without my agreement, but there is also a very vague clause about changes agreed by the corporation can be automatically incorporated. Also, my line manager, although he agreed my flexible working request, never updated HR and all they have on record is my contract agreeing to a 26-hour week. Where does this leave me?
The terms of your contract of employment, including your working hours, are ultimately determined by the realities of what happens in your day to day work. Therefore, regardless of what your line manager has relayed to HR, or what is set out in the contractual document, your employer should accept that your working hours are the pattern you have followed for the past two years. Even if your line manager had never formally agreed your working pattern, the employer would have been deemed to have accepted it as a term of your contract by the custom and practice of you working those hours each week for the past two years.
If your employer accepts that point, they cannot then vary your working hours without your agreement. Any attempt to impose the variation would amount to a breach of contract and you could leave and claim constructive dismissal.
In order to try and secure your agreement to a variation, your employer would be expected to engage in consultation with you. This consultation process may be very similar to the redundancy situation that you recently faced in that your employer would hold meetings with you to explain their position and explore possible alternatives to their proposal. They would also need to address the points and concerns that you have already raised about how your working hours could fit with their new proposals. Whilst your employer does not have to agree with you, they would be expected to justify why they need to make their proposed changes.For example, if they have previously accepted two people being available to cover the role at any one time, why have they now decided that there must be three people at all times?
The aim would be that even if you could not agree to their original proposal, it might be that you could come to a workable solution and agree a variation to your contract on those terms.
However, employers are entitled to manage or restructure their business as they see fit, provided they do so for sound business reasons and they act reasonably towards the affected employees. This means that if, after appropriate consultation, you are not persuaded to agree to a variation, one option open to your employer is to serve notice to bring your employment to an end and offer you a new contract with the revised working hours. If you do not accept the new contract you will have been dismissed and your employer would have to show that this was for a fair reason. The reason your employer would most likely give is that it is for “some other substantial reason”, which is a potentially fair reason for dismissal and can include circumstances such as a business restructures and reorganisations like this one.
If your employer does not offer any justification for their decision, but then still impose the change or dismiss you, then you may be able to pursue a claim for unfair dismissal. Also, you might try and argue that their decision would impact more on women than men because women have the majority of the childcare and therefore it is indirect sex discrimination. However, your employer is likely to be able to argue that they can justify this change for good business reasons.
Before matters come to that point, it is in the interests of both parties to be as frank and open as possible with each other during the consultation process. Given that you are an existing employee, you know the business and you know the role, it would generally be in the interests of your employer to retain you and avoid having to recruit someone new if you were forced to leave. Therefore, I would advise that you explain the difficulties that you do face with their new proposals, but also the fact that you are prepared to be flexible as far as you can be. Hopefully, this will allow you to come to a mutually beneficial agreement to the situation.
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