Childcare problems due to shift pattern change

I have been working nearly nine years for my current employer. I was transferred over to my current site on my return from maternity leave. Since my return the store opening hours have been 10-18.30 with my shift starting 9.30 and finishing 18.30. The store opening times have been perfect with the balance of work, collecting my child and getting her home at a reasonable time. Especially as my partner works late and travels for work. It does not state in my contract shift times, only how many hours I work. It also does not state change of store opening hours, only about extra hours and weekly shifts and claiming any overtime hours back in lieu. The store manager has informed the team that the store will be extending its opening hours. This means that staff will have to do shifts. Taking in turns doing 9.30 – 18.30 and 11.00 – 20.00. (Doing the later one would mean that I would be collecting my 3 year old at 21.30). We had two weeks notice. I have explained my childcare situation, but the manager said everyone has to do the shifts. If I cannot do this and they have to make me redundant, would I be entitled to one month’s notice plus one week’s pay for every year I have worked? I am looking to request flexible working, but I don’t feel my store manager or HR manager will look at it fairly. Once I have done so will I have to do the 11.00 – 20.00 shift? I am worried that if I do, this will be taken that I agree to do that shift.

Your employer cannot change your working hours or shift pattern without your consent. Some contracts will say that your employer may make changes, usually on giving you reasonable notice, but employers can only use ‘flexibility clauses’ to make reasonable changes. The first thing to do therefore is to check your contract. It might say something like, “We reserve the right to vary contractual terms as may be required to meet the needs of the business. You will be given reasonable notice of any change”. If there is nothing like this in your contract and you have not been consulted on the proposed changes, your employer will be in breach of contract if they impose the changes without your agreement.

Even if the contract does allow your employer to make changes to terms and conditions, as a working mum with childcare responsibilities you shouldn’t be forced into working a new shift pattern where this would place you at a disadvantage compared with others who do not have similar caring responsibilities. You have taken the right step in approaching your manager; you need to make it clear that you will not be able to work the new hours because of your childcare arrangements. It’s not enough for your employer to say, “everyone has to do it” particularly as the Courts and Tribunals have repeatedly found that working mums with childcare responsibilities are disadvantaged by such changes. If your employer unjustifiably imposes the shift pattern, you could pursue a claim of indirect sex discrimination in the Employment Tribunal.

There is no minimum period of notice which must be given to employees when changing shift patterns. Employers must give ‘reasonable notice’ to the affected staff and what’s reasonable will depend on the particular circumstances. As a general rule of thumb, the greater the negative impact of the change on staff – the longer the consultation and notice period will need to be. Where consent for the change has not been given, an employer may decide to give all staff lawful notice bringing their employment to an end and immediately offer to re-engage them on different (usually less-favourable) terms. Where this occurs, the employer must give the minimum statutory notice – one week’s pay for each whole year of service, unless the contract allows for more. This is a risky option as termination in these circumstances is likely to lead to unfair dismissal claims.

As for applying to work flexibly, you should make your request, in writing, as soon as possible. On receipt of your application, your manager or HR adviser must deal with it reasonably and may only refuse the request for one of the prescribed business reasons. If your request is refused because you raised concerns about working the new shift pattern, you may wish to obtain legal advice. Being treated unfairly by your employer because you complained about indirect sex discrimination could give rise to a victimisation claim against your employer.

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