I have been with my employer for five years as bank staff and I have just returned to work after the loss of a baby and my maternity leave has now ended. There has been a change of management, which is common and happens yearly. I am currently pregnant and will only be at work for four months before I go on maternity leave again. I previously negotiated regular flexible hours with my former boss who was very accommodating, but since returning to work, I have not been given any shifts at the house I worked at before I left for maternity. Instead I am working with different people and have been told that I can’t have the hours I had before. I can only work certain days and have been told my lack of flexibility is partly to blame (I offered no more flexibility before I went on maternity, which was understood by my previous boss, as I have a child to care for). I am very stressed out by the situation. We have a mortgage to pay and my wage is important in our household. The company have taken on more staff since I left, which is quite normal with bank, but there are now not enough hours to go round. However, I do expect to have a fair share of the hours available. I have also since offered up my weekends to show more flexibility, but I am concerned about my stress levels with this, especially as my pregnancy progresses. I do have a contract with terms and conditions, which they are in fact sticking to with this new situation, but surely no one in their right mind would expect me to return to work on the minimum hours? Am I to be grateful for getting some hours? I work to live and this is not financially viable. I have tried to speak to my boss and I have since lost more hours and been offered to pick them up miles from my area, at a very busy home with people with high needs. Is this fair? Do I have any rights?
Your employment rights in this situation will depend on your employment status and whether you are an employee, a worker, or self-employed. I understand from your query that you are a ‘bank’ support worker. If you are genuinely a bank worker, your legal status would be that of a worker and not an employee and therefore your legal rights in this situation would be more limited. However, please bear in mind that an employment tribunal would consider the reality of the relationship between your employer and you and even though you have been labelled as a ‘bank’ worker, a tribunal would review the overall picture to decide whether you are genuinely a worker or whether you are, in fact, an employee, for example. In determining the question of your employment status, a tribunal would consider questions such as, are you required to provide your services personally? Is your employer obliged to provide work and are you obliged to accept it? Does your employer exercise control over the work you do? Also, your employment status can change over time.
I would need to examine your employment status in detail to fully advise you. However, for now, I have assumed that you are genuinely a bank worker and therefore have worker status, despite you saying that you work regular hours, which would be more indicative of employee status.
As a bank worker, you have no right to be offered certain work or particular hours despite the fact that you say that your previous boss was very accommodating when you asked for flexible hours. Your employer can offer the work to whomever it chooses and there is no obligation on the bank worker to accept the work offered. If you are not an employee you do not have a right to resign and claim constructive dismissal by claiming that your employer has fundamentally breached your contract by reducing your hours. Also, you do not have a right to request flexible working, as this right is also only available to employees.
You do, however, have a right to claim discrimination in the tribunal. I understand that you have been informed by your employer that your reduced hours are due to your lack of flexibility. You could claim that your employer’s actions in this regard are discriminatory on the grounds of sex, given that your lack of flexibility is inherently linked to your childcare responsibilities. Any claim for sex discrimination must be submitted to the tribunal within three months of your employer’s discriminatory act and you would need to go through the Acas pre-conciliation procedures before a tribunal will accept your claim. As a first step, I would, however, recommend that you submit a formal written complaint/grievance to give your employer the opportunity to address your concerns and rectify the problem. If this doesn’t resolve the issue, you could then consider submitting a claim to the tribunal.
If you would like to discuss this matter further, please contact Tracey Guest on 0161 975 3823.
*Helen Frankland assisted in the preparation of this answer.