Forced to do extended hours: ask the expert

I am currently on maternity leave and due to go back soon. I work for the NHS and, unfortunately, a number of changes have taken place within the department – including extended hours. There has therefore been a recent consultation regarding working late nights til 8pm and also working on Sundays. This is not really what I had in mind, especially as I now have to care for a young baby (and also have to commute into work). Original working hours before maternity leave were: 9am-5.30pm plus Saturdays and bank holidays on a rostered basis. I have put in a request for flexible working and also had a meeting with both my manager and HR to discuss both flexible working and the recent consultation (which has now closed: with working hours extended as above). I am still waiting to hear from them, although I have been told that if they cannot find a job share then I must return at the original hours. I am unclear legally whether they can impose these extended working hours on me and refuse a job share on the basis that they cannot recruit into it. Do you have any thoughts?

There are two parts to your question. Firstly, can your employers unilaterally impose a change to your terms and conditions of employment.  Secondly, can your employers lawfully refuse your flexible working request to carry out the role as a job share.

Changes to terms and conditions:

In relation to the first question if you employer is seeking to change your contractual hours of work they should first try to seek your agreement to the proposed changes.  Failing that they need to enter into a period of consultation with you about the proposed changes during which you can raise your concerns including the fact that you are unable to attend work before 11.00am due to public transport difficulties and the fact that you do not feel able to drive.  Often an employer will want to reach an agreement with the employee and will need to seriously consider the points you put forward.  Ultimately after a period of consultation if you still do not agree to the changes to your terms and conditions your employer can dismiss you and re-engage you but offer to re-employ you straightaway on the new terms and conditions i.e. with the new working hours. Most employers will want to avoid a situation where they have to carry out a dismissal and re-engagement process because if challenged they will have to demonstrate they acted reasonably in dismissing you because of this. This is not to say that they will not be able to show that they acted reasonably, particularly if there is a strong business need for the change to terms and conditions, and the majority of employees who the change affects have accepted the change. You employers cannot, however, unilaterally impose a change of terms and condition of employment on you without your agreement.

Flexible working requests:

In relation to the second part of your question, as well as raising your concerns about the new proposed working hours as part of the consultation process if ultimately you decide to accept the changes to your terms of conditions and commence working them but then find this difficult due to your childcare responsibilities you then have the option of making a request for flexible working. This can be a request to change your current hours, times or place of work.  I note that you have done this and that your employers have held a meeting with you.

You have requested a change to your hours of work and specifically requested to carry out your role as a job share.  Your employers have indicated that if they cannot find someone to job share with you they will not be able to grant the request.  Under the flexible working regulations employers have eight specific grounds upon which they can reject a flexible working request.  This includes “inability to recruit additional staff”.  Consequently your employer could refuse your request on this basis.  Ultimately however if your employer can show that the role needs to be carried out at those hours and it is not possible or desirable to recruit someone to job share the role with you on grounds perhaps of additional cost or due to a recruitment freeze for example, your employer could refuse your request.  You should, however, consider whether there is any other proposal you can put forward by way of a compromise perhaps as to how you could carry out the role and really prepare a case to put forward to your employer as to why you believe the role could be carried out on a job share basis and why that may not cost any more.  If you have in mind an existing employee with whom you can job share, then this is all the better. A well prepared case and willingness to be a bit flexible with your employer is likely to increase the likelihood of an agreement being reached in relation to your working hours with which both you and your employer can be happy.

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