Do I have to give up compressed hours in restructure: ask the expert

I work in a US bank in the City. They are restructuring but say they are not making any redundancies. I work a compressed week – five days in four – and am reluctant to give up my fifth day, when I pick up and drop my children at school. What are my rights if they say that only full-time positions are available? I have worked part-time and then compressed hours for several years with my contract having been changed to incorporate this.

Your employer has not yet indicated that they intend to impose changes to your working hours due to a re-organisation, and it may be that you are not affected at all. However, if they are proposing a change to your terms and conditions, there will be a consultation process in which you will be able to discuss and object to such changes. If a role is offered to you on a five day a week basis, you can obviously put forward a request to continue with your compressed hours. Initially, this can be in the form of an informal discussion with HR / your Manager. If informal discussions fail, you could submit a formal flexible working request. Your request could only be refused on one of several “business grounds”, and there is a set procedure that your employer must adhere to. Simultaneously, or afterwards, you could also use your employer’s grievance procedure to attempt the resolve the issue. If your employer deals with your flexible working request unfairly then you would have a claim for sex discrimination and constructive unfair dismissal if you chose to resign as a result.

In the event that your employer does not agree to your compressed hours during the consultation process and following any grievance or flexible working request, there are three potential outcomes to consider:

1. You accept the change and make the necessary childcare arrangements;

2. You refuse to accept the change and your employer dismisses you;

3. You refuse to accept the change and you resign.

Accepting the change

You have indicated that this is unlikely to be applicable. However, it may be a preferable option in comparison to a dismissal or a resignation. If you feel that your employer would be able to successfully defend a Tribunal claim (as discussed below), then you may want to consider whether it is possible to make alternative childcare arrangements. Obviously the benefit of this is that you would retain your income.

Dismissal

If the business re-organisation involves changing your working hours to work five days per week and you refuse to do so, your employer may decide to dismiss you. You may then want to consider whether to bring an unfair dismissal claim against your employer at an Employment Tribunal, and there are a number of issues to consider.

There are several potentially fair reasons for dismissing an employee, e.g. conduct, capability, etc. Aside from the more specific reasons, one of the potentially fair reasons is much more general and is known as “SOSR” – some other substantial reason. In order to successfully rely on this, your employer would have to establish that there were good, sound business reasons for imposing the change and the reorganisation, and that it was reasonable to dismiss you for refusing to accept it. Case law has established that an employer will only need to show that there were clear advantages in imposing the particular change. They do not have to show that the change was essential or even that any improvement to the business was actually achieved. As such, it is relatively easy for your employer to overcome this hurdle and show a fair SOSR reason for dismissing you in the event that you refuse to accept the change to your terms and conditions.

That said, your employer must submit evidence of the business reasons for the change and show they were substantial. In your case, they would have to show that there are justifiable reasons for requiring you to work five days per week (e.g. to ensure that customers are able to reach the same point of contact Monday to Friday). Finally, your employer must show that any changes to your terms and conditions were genuinely as a result of a restructure. In some cases, employers have tried to disguise a redundancy situation as a restructure, but this is something that is more likely to apply if your hours are reduced.

In considering the reasonableness of your dismissal, a Tribunal would consider whether dismissal was an outcome that any reasonable employer might have adopted. Other factors such as how many other employees accepted the change, and whether the proposed terms had been agreed with a trade union would also be considered.

Ultimately, whilst you could bring an unfair dismissal claim in the Employment Tribunal, you would need to consider the strength of your employer’s case. From the facts you have provided, it is not possible to judge whether your employer would be able to satisfy the conditions outlined above. However, you must be aware of the relatively low threshold that your employer has to satisfy.

Resignation

If you resign from your position due to the changes imposed by your employer, you may have a claim for constructive unfair dismissal. This would be on the basis that your employer’s actions resulted in a breakdown of trust and confidence, leaving you with no choice but to resign. As discussed above, your employer’s defence to this is likely to be SOSR (business re-organisation), and the strength of your claim will depend upon whether your employer can satisfy the conditions discussed above.

Sex Discrimination

In addition to an unfair / constructive dismissal clam, you may also have a claim for sex discrimination on the basis that it is generally female employees who rely on a certain amount of flexibility in terms of their working hours. In addition, if your employer rejects your request to work compressed hours and has not relied on the specified business grounds to do so e.g. customer demand, then you would have a claim for sex discrimination.

If you require assistance with submitting a flexible working request, drafting a grievance, or further information regarding the potential claims that you could bring at Tribunal, please contact Tracey Guest on 0161 975 3823.





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