Forced to add availability for extra shifts

My company has implemented a new electronic rota system and we were asked to have a meeting about our availability. Some of us added extra availability hours, but we were told once the meeting was over that we cannot then change our availability again for another six months and even then we can only change these hours in extreme circumstances. That means if I said I was available if needed to work on certain days outside my normal shift that they can put me on shift at any point during those days. Can a company keep you under this type of contract? Also we used to have two breaks of 15 minutes and a 30 minute break in an eight hour shift and they have cut those two 15-minute breaks. I feel that I now am at the companies beck and call. We were told that if availability wasn’t added people would be made redundant and they have been.

flexi time

 

I understand that you have been asked to provide your times of availability to work to your employer and have been told that you cannot then change this for six months.

Your concern appears to be that your employer may be able to make you work at any time during your stated times of availability and that you are not allowed to “change your availability”, by which I have taken to mean that you may not be allowed to refuse to work during any such period of availability.

It is difficult to advise you with any certainty without reading what your contract of employment says in terms of (1)what your contracted hours are per week and (2)what happens if you refuse a request to work; which seems to be your concern.

It could be that you are working under a “zero hours” contract, under which you may be required to be available for work but are under no obligation to accept work when offered, or that you have an employment contract which guarantees a minimum number of hours’ work per week/month/year that you are obliged to do.  Assuming that it is not a zero hours’ contract and that you are required to work a certain number of hours per week, month or year, then this can be lawful; as long as you are not working more than 48 hours per week without your agreement and you are receiving sufficient daily and weekly rest (11 uninterrupted hours’ break in each 24 hour period and 48 uninterrupted hours’ rest or two periods of 24 hours’ uninterrupted rest each fortnight).

You must also remember that you are still entitled to at least 4 weeks’ holiday in each holiday year, plus Bank Holidays.  You are entitled to be paid your normal daily rate (including overtime and commission) for these four weeks so you must keep a close eye on what you work in terms of hours, what breaks you have and what you are paid to ensure that you are getting sufficient rest and holidays and also that you are being properly paid for such holidays.

You have also expressed concern that your employer has reduced your break times from one 30 minute break and two 15 minute breaks in an 8 hour shift to one 30 minute break only in an 8 hour shift. Unfortunately, you are only entitled to 20 minutes rest per 6 hours worked and your employer can change your break times, but only subject to your agreement.

Your employer should consult with you regarding any change to your terms and conditions of employment and secure your agreement before enforcing any such change.  Enforcing a change to your contract of employment without your agreement may put your employer in breach of contract and entitle you to resign and claim constructive unfair dismissal.  However, you should seek specific legal advice on this point before you take this step. It may be that this change has a detrimental effect on working parents and as such may be discriminatory on the grounds of sex.  However, again, I would advise you seek detailed guidance on this point.

As an initial step, if you have not agreed to these changes and feel you have no other option but to accept them, then you may wish to raise this with your employer by way of a grievance if you are unable to resolve your concerns informally. I would advise doing this quickly if you wish to do so as working under new terms without complaint can indicate that you accept the new terms and thus waive your right to make a claim in this regard.

I would advise seeking guidance from ACAS or an employment solicitor who would review your contract and the consultation and provide further advice to you on your options.

*Lucy Flynn assisted in answering this question.



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