Shift changed: ask the expert

Both my partner and I work for the same company. We both work a shift rota starting from 7:00am up to 21:00pm. My hours have been set on a base rota and my partner worked under a ‘self-rota’ which basically means he can choose his hours. With a lot of hard work we have worked this around our childcare needs since I returned to work after maternity leave 1.5 years ago. Our employer has this week changed the rota system. Diminishing the self-rota and placing both of us on a set shift pattern which has no consistency. Consequently we cannot both work this rota as I can’t physically get childcare from 6:30 in the morning and from around 18:00 at night. Do we have any rights? I have spoken with HR regards this who have basically said there’s nothing that they can do to help! We are not the only couple in our job with the same problem. There are 3 other couples who are in the same position as us. I don’t know where to turn. Please help.

 

The starting point is to look at your contract of employment and see whether there are provisions allowing your employer to change your hours of work. If there are no such provisions then it would appear that your employer is changing your contractual hours without your consent.

This is likely to be unlawful. It also appears that your employer has not consulted with you or your partner regarding the changes to your hours nor indeed communicated the reasons for the change. Your employer may have genuine business reasons to change your hours, however, an Employment Tribunal would expect them to consult with you concerning their reasons for the change in hours and carefully consider the impact that this proposed change would have on your childcare responsibilities.

It would certainly be worth asking your employer again why the changes to your shift patterns have been introduced explaining that this puts you at a significant disadvantage relating to childcare.

It is also important to note that employment law includes provisions to protect parent’s rights, particularly women who usually have the lion’s share of responsibility in relation to this. Any requirement to work set hours that puts women at a substantial disadvantage to men because of their childcare responsibilities may constitute indirect sex discrimination.

Your employer would then be obliged to objectively justify the reasons for the change in terms and conditions weighing up the advantages to the business with the disadvantages to those women who were unable to work the set hours because of their responsibility for looking after their children.

In addition to raising concerns in respect of whether your employer has the contractual right to vary your hours of work, and indeed the potential discriminatory impact of the change in hours, I would also recommend that you make a Flexible Working application to work different hours to those imposed.

An employer can only refuse such an application on one of the following grounds:

The burden on the business of any additional costs incurred

– Detrimental effect on its ability to meet customer demand as a result

– The inability to recruit additional staff

– The detrimental impact on the quality of the business as a result

– The insufficiency of work during the periods that the employee proposes to work

– Planned structural changes

If your employer still refuses to budge and cannot objectively justify their refusal of your request then this could form the basis of an indirect sex discrimination claim. In the worst case scenario, if you lose your job because you are unable to work the new shift because of your reasonable childcare responsibilities, you may also have a claim for unfair constructive dismissal.

I would recommend that you seek specialist legal advice if you are unable to reach a satisfactory solution.





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