Do I have to do on-call night shifts?

After nearly three years, my company is trying to implement an on-call night rota which I’m being included into and I really don’t want to do it. My contract states: “You may be requested to assist with on-call duties.” I believe that is a request that I can either accept or decline and I have declined, but now they have come back to me and said that it states in my job description “availability for on-call rotations 24 hours seven days”. I was just wondering are they right and because it states that in the job description do I have no choice or can I still refer to the wording of my contract which I interpret as optional?

Overtime

 

I am unable to advise fully as I do not have the full background and sight of the relevant documentation. However, I will set out the general position below.

Where there is a dispute in an employment context, the courts will want to ascertain the intention of the parties when the employment relationship was entered into. The starting point for this exercise is usually the written contract. Case law suggests that the meaning that a court will apply to a document is the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

In your situation, “background knowledge” for the purposes of interpreting your contract would include factors such as the job description, the discussions that were held with you in any interviews prior to you starting your role, the standards of the industry within which your employer operates and your employer’s custom and practice. Given that the job description refers to you being available for on-call rotations, I imagine that any subsequent job interviews would have discussed or at least mentioned this to make you aware that you would possibly have to do “on-call” work. In terms of industry standards, an example would be the healthcare sector where it is generally expected that certain staff would have to be available for “on-call” work. If your employer has other staff in similar roles doing “on-call” work, this would also strengthen any arguments that you are required to be available for “on-call” work when requested as opposed to being an option which you can refuse.

Assuming it is found that your contract requires you to be available for “on-call” work, I consider the fact that you have not actually done any “on-call” work below. In these circumstances, it may be possible to argue that a new term has been implied into your contract by custom and practice, given how long you have not had to carry out “on-call” duties. As a result, you would be arguing that the sudden requirement for you to move on to an “on-call” night rota constitutes an attempt by your employer to unilaterally change your contract of employment and therefore a breach of the employment contract, entitling you to resign and claim constructive unfair dismissal. I should note that constructive unfair dismissal claims are notoriously difficult for claimants to win. In particular, in cases of this nature it is relevant that the courts are generally not willing to imply a term into a contract where it is considered that the proposed term would be inconsitent with what is written in the contract and the parties’ intentions at the time that it was signed. You should therefore take holistic legal advice before proceeding down this route.

In the context of employment law, a party cannot unilaterally change the terms of a contract of employment without the consent of the other party. An employer would be advised to follow a fair process to try to gain an employee’s consent. However, there may also be instances where provisions in the contract of employment pre-authorises the proposed changes i.e that the employer can make these changes without your agreement. These provisions are commonly referred to as flexibility clauses and, arguably, the wording in your contract that you refer to could be such a clause.

That said, the fact that the contract appears to allow the employer to make the change does not mean that it can make that change with impunity. Although each case will turn on its facts, case law suggests that the employer would need to act reasonably and that the more detrimental the proposed change is in the interests of an employee, the more difficult it will be for an employer to rely on it.  It will therefore be helpful to show the negative impact the on-call rota will have on you, for instance, increased/ decreased hours/ a reduction in pay or impact on health due to a medical condition. If you have not already done so it would be helpful to have a conversation with your employer to explain the difficulties that you are going to face with being “on call” at night. It may be that through such discussions you may come to some form of compromise which benefits both parties.

*Helen Frankland assisted in answering this question on behalf of Slater Heelis lawyers.



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