New manager says I can’t continue on night shifts

I’ve worked for the NHS as bank staff for several years then on contract, always on night shifts due to caring responsibilities. My new manager has come along and told me that as I haven’t got anything in writing I’ve got no right to work nights. I’ve been put on day shifts. What can I do?

Illustration showing medical staff

 

Your contract is the starting point for understanding your contractual and legal rights. If your contract does not specify you will only work night shifts, you need to check if there are any other documents which might show this was agreed, such as emails or letters, and whether it was temporary or permanent.

If there has been an agreed change to the contract, then that should have been recorded and allow you to argue that night shifts are your contracted hours. If there are no documents other than historic rotas, you may still be able to argue you have been working night shifts for several years and therefore your contracted working hours have been set by way of custom and practice. This is an implied contractual term. Implied terms cannot normally trump an express written term in the employment contract, although there is a greater chance of success if your working hours are vaguely worded in the employment contract. This might apply if, for example, the contract does not make any reference to day or night shifts but only says that you will be working shifts and these will be communicated to you by your manager.

You mention that the reason for working night shifts is your caring responsibilities. If the relative has a disability for the purposes of the Equality Act 2010 (that is, they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities) and you have primary responsibility for their care, then you are protected from discrimination because of the parent’s disability. This is called associative disability, and it protects an employee from being treated less favourably because they have caring responsibilities for a disabled person in comparison to someone
doing the same role and who does not have those same responsibilities. This is called direct discrimination.

You may also be able to argue that their practice of allocating day shifts to you is indirectly discriminatory, that is, the practice subjects you, and anyone in the same position (that is, with primary caring responsibilities for a disabled person) to a particular disadvantage. An employer can potentially justify indirect discrimination if they can show that their actions are proportionate and for a legitimate aim, such as ensuring sufficient cover on a team or clinic.

I recommend that you check all paperwork and documents about your working hours, ask for a copy of the rotas you have been allocated (or retrieve these if you have them already), assess whether your parent is disabled, and then ask the Trust to reconsider their position. If they refuse to do so, you could make a flexible working request which they are obliged to give proper consideration to. If that still does not result in the desired outcome, you could raise a grievance and, if necessary, take legal advice from a solicitor or trade union.

*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon.



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