Flexible working turned down: ask the expert

I’ve have been working for a hotel company for four years, doing a morning shift ie 7-3 or evening shift ie 3-11 or 5-11. Last year when I became pregnant, the HR manager was made redundant. My manager had no experience on pregnant employee issues so my risk assessment wasn’t done and my hours were cut down. From a 39-hour contract, I was given 15-22 hours. Due to heavy lifting or moving of furniture, I injured my back so I took early maternity leave. During my leave, I found out about the procedures which were not followed while I was pregnant. I filed a case before an employment tribunal, but was rejected as it was not in the three-month claim period.
When I was due back at work, I put a flexible working request to work a particular shift ie morning only & weekend off so that we can work out childcare arrangements between my husband and myself. This was refused due to business needs. I can either to full or reduced part time hours. I do not believe there is a good business reason. My manager gives me all the difficult shifts, for instance evenings one day and early mornings the next. When I have objected, my manager says he has heard how much I like going to the employment tribunal and making a fool of myself so I should do that. Online I read that employees should have an 11-hour break between each shift, but my manager says that the hotel policy does not acknowledge this. I’ve found out that employees in different departments have been given flexiblity as they have young babies. Also, in my department, they have one part-time morning supervisor. Recently my husband has changed his job and he gets weekends off so I asked my manager not to give me weekends off as my husband can look after my baby, but he won’t listen and keeps giving me the weekend off. Can I ask only for evening shifts? Also the hotel has just been bought by a different company so can I make another flexible working request?

There are a number of issues raised in your question.

Firstly, with regards to your previous Tribunal claim, as you are aware, you were out of time for bringing these claims and therefore you will not be able to pursue these claims further. however, you could seek advice from a personal injury solicitor regarding your back injury as the time limits for bringing such claims are much more generous than those in the Tribunal.

With regards to flexible working, you state that your flexible working request has been refused. There are two ways to make a flexible working request – you can make it informally by simply speaking to your Manager, or formally by following a formal statutory procedure. If you made a formal flexible working request, which has been rejected, you are only legally entitled to make another request after 12 months has passed from the date you made your original request.  Alternatively, you have the right to appeal against the previous decision. Furthermore, you may not have made a formal  request so far. Therefore, if you have not already made a  formal request, I recommend that you do so in accordance with the below. If you have already made a formal request, I recommend that you lodge an appeal.  Which ever is the case, you need  to make it clear that you would now like to make an application to work evening shifts and weekends only.

A formal request must be in writing and dated and must:

– State that the application is being made under the statutory right to request flexible working;
– Detail the changes requested and the date it is proposed that such changes should become effective;
– Explain what effects you consider such changes will have on the Company and how these may be dealt with;
– Confirm the relationship between you and the child

Your employer must hold a meeting with you to discuss your flexible working request within 28 days of the date of your application. This will give both parties an opportunity to consider how the application may be accommodated. You will have the right to be accompanied to the meeting by a fellow colleague. Your employer must provide you with a final decision, in writing, within 14 days of the date of meeting. If your request is granted, the letter must specify the variation agreed and the date on which it will take effect. If your request is refused, the refusal must be based upon one of the following statutory grounds:

1.      The burden of additional costs
2.      Detrimental effect on ability to meet customer demand
3.      Inability to re-organise work among existing staff
4.      Inability to recruit additional staff
5.      Detrimental impact on quality
6.      Detrimental impact on performance
7.      Insufficiency of work during the periods you propose to work
8.      Planned structural changes

The refusal notice must set out which ground(s) apply and provide a sufficient explanation as to why these apply. If your request is refused, you have the right to appeal.

Under the statutory procedure, you must appeal within 14 days. You should refer to the reasons for refusal and try to offer counter-arguments as to how you feel that the issues could be resolved.

It may be the case that your employer does have a genuine business ground for refusing your request, and if this is the case you would need to consider your options, i.e. whether you can make the necessary childcare arrangement or whether you want to consider seeking alternative employment. If by the end of the procedure your request has been refused and you do not believe that the employer has properly established a business ground, you could have potential claims for constructive unfair dismissal (if you decide to resign as a result of this), breach of the statutory flexible working procedure and / or sex discrimination.

You also mention that your Manager has been extremely rude towards you by mentioning the fact that you tried to bring a claim at Tribunal and had ‘made a fool of yourself’. This could also be used as one of the reasons if you choose to resign and bring a claim for constructive unfair dismissal. Furthermore, you could have a potential claim for victimisation, ie you are being victimised by your employer because you had brought a sex discrimination claim against your employer.

With regards to your daily rest periods, it is correct that you should have a daily rest period of at least 11 hours in each 24 hour period during which you are working. However, there are some exceptions, one of which relates to shift workers. More detail would be required regarding your circumstances, but it may be that your employer is not acting unlawfully due to the shift worker exemption. In any event, even if the exemption does apply, your employer should allow you to take compensatory rest breaks where possible. If your employer is breaching their duty in this regard, you could complain to the Employment Tribunal. The remedy would be a declaration that the employer has acted unlawfully, and a sum of compensation based upon what the Tribunal considers ‘just and equitable’ in the circumstances.

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