Not allowed to swap shifts due to being a parent

I have been with my employer for five years. I returned to work earlier this year when my maternity leave ended. I was forced to apply for flexible working hours, which as expected was declined. However, I had a verbal agreement with my manager that he would try to keep my rotas how I needed them due to childcare, but he refused to make it official by putting it in writing. This hasn’t been a problem until now. My manager has started putting me on the shifts he knows that I can’t do due to school and nursery runs. I told him I couldn’t do the shifts he’d put me on and I was told that I was expected to be in at 7am for my shift or there would be consequences. I have only ever done evening shifts since I came back. Other team members are allowed to swap shifts if they have a ‘genuine reason’, but I am not allowed to swap my shifts. My manager says I am blackmailing and demanding specific shifts and using my children to guilt trip them. They tell me that they need people who are flexible. However, they have employed people recently who aren’t flexible, due to college and second jobs. I feel I am being victimised, discriminated and bullied for being a parent.
What can I do?

I understand that you returned from maternity leave earlier this year.  You made a formal request for flexible working arrangements and although this was not formally accepted your manager verbally agreed to make sure that your rostered hours fit in with your childcare arrangements.  This seems to have worked well since then and you have only worked evening shifts since returning to work, which, I assume, works best for you.  However, your manager has recently asked you to work different shifts, including early mornings despite this being inconvenient for your childcare arrangements. The manager has stated that there is a requirement for flexibility and that there “would be consequences” if you did not arrive for a shift starting at 7am.  In addition, you also say that there have been new members of staff taken on who are not able to be flexible due to other commitments such as second jobs and/or educational commitments.  You feel that you are being singled out due to your parental responsibilities.

Generally speaking, terms and conditions of employment can be agreed orally or in writing or a mixture of the two. They can also evolve over time and they can become your fixed, agreed terms and conditions by virtue of the fact that this is the way the contract has been performed (without objection) over a period of time, in your case since the start of this year since your return from maternity leave. It does appear that you would have an argument that your employer, via your manager, agreed to give you only late shifts and in fact has done so since your return and therefore, by custom and practice, this is the contractual arrangement that has been agreed.

Furthermore, if you are the only employee being subjected to this treatment, and this treatment has only occurred following your returning from work after a period of maternity leave and is due to the circumstances of being unable to work when you were required, you could potentially argue that your employer’s treatment of you constitutes unlawful sex discrimination.  You may also have a claim for bullying, harassment and/or victimisation if you are being singled out in this regard.

In the first instance, I would advise you to raise a grievance in relation to the treatment you have been subjected to. If this does not resolve matters, I would advise you to take further specific legal advice in relation to your situation, namely the alteration of your terms and conditions of employment without your consent, the potential unlawful discrimination issue and the possible next steps.

You must submit any claim to an employment tribunal within three months of the unlawful act and you must go through the ACAS pre-conciliation process before your claim would be accepted by a tribunal.

You may also have a claim for constructive unfair dismissal if you were unable to resolve the matter through the grievance procedure and ultimately decided to resign in response to your employer’s treatment of you (NB I would always advise you to take specific legal advice before you resign from your employment). Again, the time limit for this claim would be three moths from your resignation and again, you would need to go through the ACAS pre-conciliation process before a tribunal would accept your claim.

Should you require any further advice, please contact Tracey Guest on 0161 672 1425.

*Lucy Flynn assisted in answering this question.

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