Flexible working turned down: ask the expert

My original request for flexible hours was refused; I am contracted 15 hours over two days, which always worked out as a Saturday plus a late shift during the week 2-10, or two lates during a weekday if I didn’t  work the weekend. I asked to split my weekday shift into 6-10 twice a week plus my Saturday, or three weekday shifts 5-10 if I didn’t work a Saturday. They refused due to costs and because they said that, with the exception of Sundays, it is not possible for them to assign set days/shifts due to the nature of the business. I appealed, for two reasons; my colleague works a Sunday shift, and though she doesn’t have set days she works apart from this, she attends uni on a Tuesday and Thursday so cannot work these days. The other reason was that they had gotten something wrong on the refusal letter as I hadn’t asked to split my shift on a Saturday, but they had taken this into consideration and used this as a reason to refuse. During my appeal meeting, I was then told that no day of the week was allowed to be assigned as a ‘set day’ and that, though my colleague may be working a Sunday, she should not have it as ”her’ shift. I offered them alternatives to account for the reason of costs; they had assumed I was asking for set weekdays, but I told them any weekday is fine, it was just the time I was asking to change. They said that if they were unable to cover the shift 9-6, me not being in until 6pm would affect the business, so I offered that if this did happen (historically it never has, as everyone prefers to work the day shifts, it has always been the late shifts which have been a problem to cover), I would pull some strings and make one-off arrangements to enable me to work 2-10 instead. I also assured them that I wasn’t asking to split my Saturday shift, I would work any shift as assigned on this day. I then also offered that I might be able to continue to work 2-10 on a Thursday or Friday (my eldest son does not have preschool on these days) in order that this would provide more options for flexibility on my part. I also assured that during school holidays, I would be free to work any shift required (as I wouldn’t need to pick my daughter up from school, or son from preschool). I promised that I would still make myself available for overtime, as I always have done, and to cover staff holiday.

 
My appeal was refused, for the same ‘repeated’ reasons as on my previous letter. They said that my colleague does not have set shifts – which she does; every Sunday and though she may not work a set day during the week as part of her other hours, she cannot work Tuesday or Thursday as she is at uni! She stated that as my rota was worked out 4-6 weeks in advance, this should give me plenty of time to arrange childcare… I am quite annoyed about this comment, as my problem is not finding someone to look after them, it is getting my daughter picked up from school.
(She attends school 5 miles from where I live, which is the same area my son attends preschool Mon-Weds. My mother-in-law will have my kids, but she lives 25 miles from us, so is happy to have the kids at our house, but does not want to go back and forth to school with my other son – a baby, having to squeeze three kids into her two-door car, plus lug a pushchair around) I literally have no one that can collect her from school. I can get her into after school club, but that is going to mean my husband will have to catch a train from work straight to her school, then take her home on the train as I will need the car for work, and she is likely to end up going to bed later to accommodate this option. It would also mean that if I am rota’d to work a shift Mon-Weds, I would have to collect my son from preschool early, as he attends 9-3, in order to get him home to my MIL before I started work at 2. I realise I can no longer appeal any further as my ‘appeal has been exhausted’ but I still feel that they are being a bit one-sided in relation to the flexibility, as I have made every effort to resolve each of their reasons against with a viable solution. Plus they are not forcing my colleague to work a Tuesday or Thursday when she is at uni – it seems a little stilted!

 

What can I do now? I have to return to work as it could financially cripple us if not. Do I return ‘under protest’ or just go back as normal? I am also concerned that they are now going to insist that I have to work day times, even though I have always worked Saturdays or late shifts, as my contract only states 2 days/15 hours- can they do this when they verbally agreed my shift pattern on recruitment and I have been working that pattern since I started?

I understand that you are contracted to work 15 hours per week over two days and this means that you currently work a Saturday plus a late shift in the week or two late shifts during the week if you do not work on a Saturday.

I understand that you recently submitted a flexible working request requesting to work two weekday shifts (6pm to 10pm) and a Saturday or, three weekday shifts (5pm to 10pm). You have offered to work any shift required during school holidays and offered to continue with your normal late shift on Thursdays and Fridays. In effect you are therefore just asking them to restrict your hours on Mondays, Tuesdays and Wednesdays. Another employee has their days restricted and does not work on Tuesdays or Thursdays.

Your flexible working application was refused on the grounds of cost and the fact that apart from Sundays, your employer cannot assign set shifts/days due to the nature of the business. You appealed, citing your colleague who does not work set week days but does not work on Tuesdays and Thursdays due to her unavailability on these days and also noting that the Company made a mistake in the outcome letter relating to you requesting a split shift on Saturdays, which was inaccurate. Your appeal was rejected for the same reasons as in the Company’s previous outcome letter.

Your employer must follow a set procedure when dealing with your flexible working application. It appears from your email that you do not have any concerns as to the procedure followed by your employer, but rather the reason used for rejecting your request and the fact that your request was rejected. Your employer may only use certain specified reasons for rejecting your flexible working application. One of these reasons is ‘burden of additional costs’, which I understand is the reason specified by your employer for rejecting your request. An explanation should also have been provided to you explaining why your requested working pattern cannot be accepted on the grounds of costs – why would it be costly for them to accept your request? It is not clear which ground they are citing in relation to the inability to assign set days or shifts. This should have been explained to you.

Provided that the procedural requirements have been complied with, you can only then bring a claim against your employer in the Employment Tribunal on two limited grounds under the flexible working regulations: (1) that the refusal was based on grounds not in the permitted list of grounds – this may apply to you as it is unclear what one of the grounds was; or (2) that the decision was based on incorrect facts. I understand that as part of the outcome letter, your employer stated that apart from Sundays, the colleague you mentioned as having set shifts does not have set shifts. However, she cannot work on Tuesdays and Thursdays. You have asked for a similar restriction. Also, your hours have already been set in that you always work either a Saturday and one late shift or you work two late shifts. There may therefore be an argument that the decision has been based on incorrect facts.

In addition you may have a claim for sex discrimination. You would argue that your employer has put in place a provision, practice or criterion that puts women at a particular disadvantage i.e. they have a rule that shifts can not be restricted to certain days and this rule disadvantages more women than men because women are the main carers for children. You may also decide to resign with immediate effect and claim constructive unfair dismissal as a result of the way you have been treated, but please do not take this step without taking further legal advice.

You could choose to submit a grievance setting out the reasons why you are unhappy with your employment situation and the way in which your employer has handled your flexible working request. If your employer’s response does not provide you with a workable solution, then you may at that stage decide to resign with immediate effect. Bear in mind, though, that you only have three months to submit a claim in relation to the refusal of your flexible working request. The time limit would run from the date you were notified of the appeal decision for the flexible working claims and would run from the date of the original decision to refuse your request for the sex discrimination claim. If you are thinking about submitting a claim you should therefore obtain legal advice as soon as possible.

Regarding your working hours, the hours that you are required to work for your employer will depend on what has been agreed between you and your employer in your contract of employment. Your contract of employment can be written or an oral agreement, or a mixture of the two. I understand that your contract states that you will work 15 hours over two days per week but that you verbally agreed your shift pattern on recruitment and you have been working this shift pattern ever since. It is not clear from your email how long you have worked for your employer. If your employer is changing your contractually agreed hours without your agreement, you could have a claim for breach of contract if you suffer loss as a result of the change and also for sex discrimination if the reason for the unilateral change is sex.

On the other hand, if you are unable to comply with your contractual hours and you have not agreed a variation to your contractual hours with your employer, your employer may be able to demonstrate that it has a fair reason to dismiss you. I would therefore advise you to take further legal advice if your employer attempts to change your working hours without your consent. We would then need to review your contract of employment in order to advise you on next steps.





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