I have worked for my company for the past 13 and half years and have a set rota. Over the Xmas period for six weeks the store is open til 10pm. When I returned to work from maternity I stated I could not work past 8 o’clock. This letter was never put on my file. For the past two years I have had to argue about the hours around Christmas. This year I handed in yet another letter saying I could not work past 8 o’clock and nothing was said. I had a meeting the the new manger recently who said not to worry about it. However, I have just been told I will have to work till 10pm on Fridays over Christmas. I have explained I can’t do this because of childcare. I gave them two alternative rotas, having spoken to my colleagues who are happy with them, but they have said no to these, saying that it is not fair if I don’t work till 10pm like other staff in different departments. I have a three year old and a seven year old and getting childcare until 10pm is impossible. What can I do?
I note that you have worked for your employer for 13.5 years and that you work on a standard shift pattern. I understand that for the six weeks up to Christmas, your employer has extended opening hours and you are required to work a revised shift pattern. However, I understand that you have objected to working the extended working hours but that your employer has still persisted in requiring you to work the same.
Whether or not your employer can impose the revised shift pattern will largely depend on your terms and conditions of employment. These can be written or oral or often a mixture of the two. As a first step you should review your contract of employment (if you have one) and carefully check the hours of work clause. It may be that your employer has the discretion to set revised hours over busy periods or in accordance with increased demand. Even if your written contract of employment contains no such terms, it may be that this is an implied term of your contract of employment as it is how your employer has operated over a period of time (i.e. it is implied into your contract of employment through custom and practice).
Imposing revised working hours without a contractual right to do so will be a breach of your contract of employment and you may be able to resign and claim that you have been constructively dismissed by your employer. You could submit a claim to the employment tribunal for constructive unfair dismissal within three months of your resignation. Please note that you must also go through the Acas pre-conciliation procedure before submitting your claim in the employment tribunal. However, I would always advise you to take specific legal advice before resigning from your employment.
Even if there is an express or implied contractual right for your employer to operate in this way, you may still be able to argue that such a policy/practice of requiring staff to work extended hours over busy periods is indirectly discriminatory on the grounds of sex in that it disadvantages women with childcare responsibilities. You could bring a claim for sex discrimination in an employment tribunal within a period of three months from the date of the act to which the complaint relates (in your case the ongoing requirement of your employer for you to work extended hours). It would then be for your employer to establish justification and show that the change in shift pattern is a proportionate means of achieving a legitimate aim. Please note that you must also go through the Acas pre-conciliation procedure before submitting your claim in the employment tribunal.
Before considering submitting an employment tribunal claim, I would suggest that you submit a written grievance to your employer stating that you consider the imposition of the extended working hours to be unfair. If this does not then reconcile matters that I would suggest you take specific legal advice about making a claim to an employment tribunal.
Should you require any further clarification on the above points please do not hesitate to contact Tracey Guest on 0161 975 3823.
*Helen Frankland assisted in answering this question.