What are your rights when faced with a change of your working hours? Sybille Idrac-Raphael, Solicitor in the Employment team at Russell Jones & Walker, offers top tips on what to do when a reorganisation threatens your childcare arrangements.
What can you do when your employer decides that you now need to arrive and leave work 2 hours earlier (or later), ruining the fragile equilibrium you painstakingly achieved with your nanny’s or nursery’s timetable?
You do not necessarily have a say on every minute rule as to how you do your job. It is for instance accepted that your employer can require you to stop or start working on specific tasks (within your job title and up to a point: it should not be akin to a demotion in terms of status and responsibilities). But your hours of work are usually expressly set out in your employment contract and are generally considered to be a contractual term.
If your employer had agreed to a flexible working request, then the flexible hours have become a contractual term (unless your employer had said that new hours are subject to a trial, in which case, it is only at the end of the trial period that the hours become contractual). That means that you have the right to accept or to object. If your employer does not get your consent, the variation is unlawful.
Sadly, this is rarely the end of the matter and your employer may well insist on his new idea. You will then have to decide whether you want to take matters further and resist, resign (and potentially claim constructive dismissal) and/or sue for breach of contract.
If you resist and insist on doing your usual hours, your employer may choose to dismiss you. You could claim unfair dismissal but whether or not you will succeed and get compensation from the Tribunal is another matter. The normal test of eligibility and fairness applies to the dismissal. A dismissal for opposing an unlawful variation of your employment contract will not necessarily be unfair. The judges will have to establish whether your employer’s decision to dismiss you was within the band of reasonable responses.
However, if you can prove that you have been specifically and malevolently targeted and that there is no real objective justification to the change of hours, you may be able to prove that your employer’s insistence at ruining your childcare arrangement and making your life impossible amounts to direct or indirect sexual discrimination. You should in such a case explain so in a grievance, which should be lodged promptly.
Your employer may also decide to reduce your overall hours of work and reduce your salary accordingly. In such a case, you might be able to claim unlawful deduction from wages and/or a redundancy payment, arguing that the requirements for you to work have diminished and that you should therefore have been treated like any other employee in a redundancy situation (you should have been consulted, you should have been offered a redundancy payment if you have more than 2 years of service, you should have benefited from your contractual notice period, etc).
In any case, if you choose to object to the proposed working hours, you should do so clearly and as quickly as possible. If you do not object to the change within a reasonable period of time or if you start working according to the new pattern, the Tribunal may consider that you have consented to the variation.
It is also important that when you object to the new working hours, you set out in writing precisely why you consider that you could do your job under your original hours. As in the case of a request for flexible working, the more detailed and realistic your arguments, the more difficult it will be for your employer to brush it away. Beware of time limits (3 months to lodge a grievance and claim unfair dismissal) and seek legal advice promptly!