Part-time and asked to cover five days: ask the expert

Since returning from maternity leave I have had a contract to work 22.5 hours per week. I was asked which days I wanted to work and I chose a Tuesday, Wednesday and Thursday. My new manager is now requesting that all part-time staff work flexibly across the week. The reason is that there is a lack of staff in on a Friday. This is not something I want to do as I have childcare commitments on my non-working days plus travelling into work 5 days when I get paid for 3 is not cost effective. There has been no formal review of ALL staffs’ working hours, just a request to part-time staff. Most staff in the team are contracted to work Fridays so a more reasonable situation would surely be to audit why there are not enough staff in on a Friday and then if there were genuine staffing problems to approach part-time staff. What rights do I have?

I understand that since returning from maternity leave your contractual hours have been 22.5 hours per week and that your employer agreed for you to work these hours over three days per week, namely, Tuesday, Wednesday and Thursday. Your new manager is now requesting that all part-time staff work flexibly across the week. The reason is that there is a lack of staff working on a Friday.

In terms of your hours, if your working pattern was agreed through a flexible working request procedure, then this will be a permanent contractual variation to your terms and conditions of employment unless you agreed otherwise with your employer. If your employer agreed as part of the flexible working procedure that your 22.5 hours would always be worked on Tuesdays, Wednesdays and Thursdays, then this will be a permanent contractual variation unless agreed otherwise. You would therefore need to check the terms of any agreement with your employer regarding your hours and working days to check whether these are fixed or whether your employer has retained a degree of flexibility in changing your working pattern. Even if your employer has retained a degree of flexibility in this respect, you could argue that, by implication, Tuesdays, Wednesdays and Thursdays have become your fixed contractual working days because you have only ever worked on these days in accordance with your current working pattern over a period of time.

If you are not contracted to work on Fridays or if you have only worked on these particular days over a period of time and your working days have never changed, and your employer does not have the contractual right to change your working days, you could argue that any attempt to change your working pattern to include Fridays is a breach of contract. If your employer unilaterally changes your terms and conditions of employment, you would therefore have a claim for breach of contract and you may also be able to resign and claim constructive unfair dismissal, although we would always advise you to take further legal advice before resigning from your employment. You may also have a claim for sex discrimination as more women are affected than men and/or on the basis of your part-time status, due to the fact that only part-time workers are being requested to work flexibly and full-time workers are not.

If you are not contracted to work on Fridays  and your employer does attempt to force you to work on Fridays, I would advise you to make your objections to this proposal clear and to raise a grievance stating that you believe that your employer is attempting to change your contract without your consent and that you consider that this constitutes a breach of your contract of employment. You should make it clear that you do not agree to this proposed change and that you want to remain on your current working arrangement. If you do not agree to the change, your employer may consult with you with a view to dismissing you and offering you re-engagement on the new terms. Such a dismissal could potentially be fair depending on the process that your employer follows however it would still be potentially discriminatory on the grounds of sex.

Please contact Tracey Guest on 0161 975 3823 if you would like further advice in relation to this matter.





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