Refused change of shifts

I have worked for my employer for 10 years and have been on long term sick leave with stress/anxiety for months. I became a single parent last April and so was unable to work my usual shift pattern  as childcare does not really exist to cover them. They allowed me to work a better shift pattern on a temporary basis. The company did not follow their own policies and procedures when it came to the flexible working application I submitted and they exceeded the time limit on dealing with the whole matter as per ACAS guidelines. I raised a grievance over this which then went to appeal. They did not find in my favour. They were unable to provide any evidence to back up my concerns and I was fobbed off.  I have had 2 occupational health reports that both suggested that they implement the FWA to ease my anxiety and work-related stress. They have ignored the suggestions, stating that it did meet the needs of the business.  There is currently a single dad who works a family friendly pattern and has done for a number of years. I used this as an example of sex discrimination as part of the grievance, but their comeback was that the business had changed since they had implemented his pattern, but did not provide evidence to back this up.  My manager conducted a stress risk assessment which contained delicate information about my state of mind at that current time. He left this information on a desk which was in a place where anyone could have seen it. It was handed to me by a colleague a number of days after it was left there.  This was also raised in my grievance.  I do not believe it was ever investigated as a serious matter.  I recently attended a meeting regarding my sickness absence. As my circumstances have not changed and I am unable to return to work on their shift pattern they state they will have no alternative but to consider my dismissal on the grounds of inefficiency arising from my non-attendance at work. I have asked for an exit package.

Your flexible working application should only have been refused on one of a number of specified business grounds. Requiring you to work a fixed shift pattern could also amount to indirect sex discrimination unless it can be shown to be “a proportionate means of achieving a legitimate aim”.

If the single dad you refer to is still working a family friendly shift pattern, that tends to undermine that there is a business need to refuse your request or that the changing shift pattern is a proportionate means of achieving a legitimate aim. In my view, it is not good enough to claim that he was granted his shifts under different business conditions: if they are continuing to allow him to work in this way, they need to explain why the business can’t sustain this for you.

Your remedy would be a claim to the Employment Tribunal under the Flexible Working legislation and/or for indirect sex discrimination. You first need to contact ACAS for Early Conciliation and need to do so within 3 months of the implementation of the decision.

Your ill health is a contributing factor, and it seems that this is the reason you are currently not able to work. Whether or not you have another claim arising out of a dismissal on efficiency grounds will depend on whether your illness is found to be a disability, whether a Tribunal considers that a change to your shift pattern would have been a reasonable adjustment and whether that would have meant you would not have been dismissed.



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