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Rights over cut in hours: ask the expert
Returning to work after my maternity leave, my employer cut my hours due to loss of business. She said it is a small business, I lost customers etc. I had no choice but to accept the new hours. After a short while I noticed my maternity cover was still working there. When I mentioned that, she said she didn’t give her enough notice, and as I was taking my 2 weeks summer holiday she had to keep her for a couple of months. The way she talked with me, I had no chance to argue. After a couple of months, the manager retired and and my boss gave the manager’s hours to my maternity cover and made her the manager. She gave me a chance to apply for the position too, but because I have a baby now I wouldn’t be as flexible as I used to be, so I couldn’t get the job. My maternity cover is very flexible, she would cover any time and any day, whereas I can only work maximum 3 consecutive days as my mum looks after my baby. My boss cannot give me enough hours so I could afford a childcare. My boss is trying to give me a couple of hours here and 4 hours there all over the week. I have tried my best to arrange the childcare and have been as flexible as possible, but recently my husband changed his job and I can no longer do one of the couple of hours during the week and everything kicked off with this. And then she asked me to cover her for her hospital appointment, but I couldn’t accept it as I had no childcare that time. She was fuming and now is trying to dismiss me because I can’t be flexible any more. She has also cut more hours with my new contracted hours which was only verbal. Do I have any rights, or has she got right to dismiss me because I have childcare problems and can only do my set hours on two consecutive days?
I understand that following your return from maternity leave, your employer cut your working hours due to loss of business and that you accepted this change in your working hours. I understand, however, that your maternity cover continued to work for your employer following your maternity leave. I understand that a couple of months later your manager retired and his/her job was given to your maternity cover. I understand that you did not apply for the position because you state that you couldn’t get the job due to your lack of flexibility on childcare grounds.
You say that your boss is now trying to dismiss you because you can’t be flexible following the birth of your baby. Your boss is trying to reduce your verbally agreed contractual hours further and you ask whether she has the right to dismiss you because you have childcare problems and you can only do your set hours on two consecutive days.
The hours that you are required to work for your employer will depend on what has been agreed between you and your employer in your contract of employment. Your contract of employment can be written or an oral agreement, or a mixture of the two. If your employer is reducing your contractually agreed hours without your agreement (and presumably also reducing your pay to reflect this), you could have a claim for breach of contract, unlawful deduction of wages and also for sex discrimination if the reason for the unilateral change is sex.
I would advise you to submit a grievance to your employer setting our your concerns and allowing it to deal with them formally. If your concerns are not dealt with and your position became untenable as a result of your employer’s actions and you have no alternative but to resign in response to your employer’s actions, you may also have a claim for constructive unfair dismissal. You would need to submit a claim to the Employment Tribunal within three months of the end of your employment. You would need to have been employed for your employer for one or two years, depending on your start date.
On the other hand, if you are unable to comply with your contractual hours and you have not agreed a variation to your contractual hours with your employer, your employer may be able to demonstrate that it has a fair reason to dismiss you. This is likely to be on performance or ‘some other substantial reason’ grounds. For your dismissal to be fair, as well as demonstrating a fair reason for dismissal, your employer would also need to show that it has followed a fair procedure. If your employer is unable to show that it had a fair reason for your dismissal and/or it cannot demonstrate that a fair procedure was followed, you would be able to submit a claim for unfair dismissal. Again, this must be submitted to an Employment Tribunal within three months’ of your dismissal and again, you would need to have been employed for your employer for one or two years, depending on your start date.
If you are unable to work your agreed contractual hours, I would advise you to submit a flexible working request. This is a written application setting out the work pattern that you are requesting and specifying your entitlement to make the application. You must specify any effect that the proposed work pattern would have on the business and how such effects might be accommodated. Your employer can only reject your application on specified grounds and you would have a further claim against your employer for up to eight weeks’ pay if it fails to comply with the relevant procedure.
If you would like any further information, please do not hesitate to contact Tracey Guest on 0161 975 3823.
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Comments [1]
Marie GHANSAH says:
My one day a week working from home was cancelled after returning from maternity, as my manager said it did not work for her (I am in the process of appealing). I have decided to take this day as annual leave as I still have 20 days to take until the end of March. She first of all refused it and when I challenged her she said she was approving it and that under the working time directive she can give me 2 working days notice and cancel it. This is not stated in our annual leave policy. Can she do that?
Editor: From our HR expert, Tara Daynes: Flexible working arrangements shouldn’t just be cancelled – they are either a permanent contractual change to terms & conditions, or should be on a trial basis that is reviewed after a reasonable, set period of time (e.g. 3 months). The reason should be one of the allowable reasons for refusing a request in the first place. So your manager can’t just cancel it soon after you start just because it ‘doesn’t work for her’ (the manager). Regarding cancelling holiday, under the WTR people are supposed to give their employer notice of taking holiday that is a minimum of 2 x the period of holiday being taken. The employer should give the same minimum amount of notice to refuse a holiday that has been requested. That said, any change or cancellation has to be reasonable in the circumstances – & obviously what is ‘reasonable’ is quite subjective! So your manager should be able to give a valid business reason for refusing or cancelling the holiday, & if she isn’t able to do that then there may be good grounds here for an appeal or grievance.