As clients and customers come to expect a round the clock service, shift working is increasing. For many employees, shift work is a choice that offers flexibility, freedom and opportunity to balance family and home.
Evidence shows that this can foster greater loyalty and retention amongst staff, which reduces an employer’s costs, while at the same time allowing its business to meet customer service expectations at the busiest times of day (or night). But as a business develops and changes, employers may need to vary shift patterns. These variations may not work for all employees, particularly as their circumstances change with the arrival of children and their differing needs as they progress through school.
Can an employer change shift patterns and can the employee refuse the changes because of their childcare responsibilities? In the range of legal support LawBite provides small business owners shift working is emerging as a hot topic. Some of the most common areas to consider are covered below.
Employees have two sets of rights: their contractual rights as set out in their contract of employment and their statutory rights. Any request by an employer to change shift patterns will in part depend on whether an employee’s contract allows the change.
If the contract set out the minimum number of hours that the employee is required to work only, as is often the case in shift workers’ contracts, generally employers can change shift patterns, provided that the employee is still being asked to work their contracted number of hours.
In addition, shift workers, like other employees, are protected by statutory rights. Amongst other things, these give employees the right to request a change to their working arrangements, including any shift patterns, to allow them to work in a way that better suits their lifestyle.
Since 30 June 2014, this right is not limited just to those who have childcare and other carer responsibilities, but applies to all employees. It is a right to request flexible working, not to work flexibly, but only one request can be made in a 12-month period, so it may not be appropriate if the change an employee needs is temporary only.
Employers are required to handle a request in a reasonable manner, which includes considering the request properly and refusing it only for certain business reasons. These include a detrimental impact on quality and performance, and the ability to meet customer demand, as well as insufficient work for the periods the employee proposes to work.
Even if the employer can satisfy one of those business reasons and properly refuse a request to change shift patterns or to not work new shift patterns, working mothers are protected by anti-discrimination legislation.
As women are generally the main childcarers in a family, any decision to refuse a flexible working request from a woman with childcare responsibilities may be indirect discrimination. This occurs when an employer implements a working practice, such as a change to shift patterns, which has a detrimental impact on a particular woman and women in general as the main carers.
In these circumstances, the employer has to be able to objectively justify its practice by showing that it has a legitimate business aim and that it couldn’t achieve its aim in a less discriminatory way.
With a change to shift patterns, aims such as to better meet customer demand are likely to be legitimate, so the key question will be, was there a better way of achieving that aim? Does the employee have to work that particular shift pattern to achieve the business aim?
The employer needs to consider, and have evidence to justify, its need to change shift patterns in relation to that employee. If there is a less discriminatory way of achieving the employer’s aim, any change in shift pattern is likely to be indirect sex discrimination.
On a practical level, there is often a solution that works for both employer and employee if the issue is discussed informally. As an employer, consider why you need to change the shift patterns and be able to justify that decision with evidence.
Have you considered all the options? Is there another way of achieving the same aim? As an employee, speak to your manager: set out your issues and concerns, including whether the change you need is only temporary; emphasise the benefits to your employer of your solution and consider any problems that your manager may have beforehand.
Information correct as of August 2017
*Louise Paull, a working mum herself, is one of a number of experienced solicitors providing simple, affordable, high quality legal services through LawBite. The company supports flexible working and offers rates which are typically 50% below traditional alternatives. For a free 15 minute no obligation consultation call 020 7148 1066 e-mail firstname.lastname@example.org or click here.