Told I would be doing night shift then moved to flexible shifts: ask the expert

I have been working at the same location for about eight months. When I first attended the job interview, I left it clear that I was applying for night shift work. At the time I was told that it would not be a problem. When I started the job I was told that the shifts were flexible. I explained what was discussed during the interview, but the person who interviewed me had left. I have been ever since trying to be moved to the night shift. I am a single mother of a 12-year-old girl. The flexible hours, mornings, afternoons, lates and night shift rotations are making my childcare arrangements impossible. I requested in writing to be given night shift only, but the request has been declined and the reason for that is: I am requesting night shift only and therefore not working rotational shifts. Internal rotations are adopted as standard to ensure patient safety and professional development of staff is maintained. The benefit of the rotation is that it enables more effective deployment of staff. I must outline that several members of staff only work mornings, afternoons or evenings. Therefore I would like to appeal, but would appreciate some guidance on how to do it correctly.

 

It appears to me that there are potentially two issues here:

Firstly, it would appear that, although you were told at interview that working night shifts only would not be a problem, the reality has turned out to be different and you are being required to work various shifts during the day, on rotation.  Unfortunately, if the rotational shift pattern is set out in your contract of employment, if there is an “Entire Agreement” clause (a clause commonly found in contracts of employment which excludes any term previously agreed and not contained within the written contract itself) and you signed the contract of employment, you will be taken to have accepted the terms as set out, regardless of what you were told in your interview.  Without having sight of your contract of employment, it is difficult to advise any further.

If, on the other hand, your contract is silent on the issue or there is no Entire Agreement clause, it is arguable that both you and your interviewer agreed that you would work night shift only, and that this agreement forms a term of your contract of employment.  In not allowing you to work night shift only, your employer is therefore acting in breach of contract.  Unfortunately, the only remedy for such a breach would be for you to resign and claim constructive dismissal, however, this is not a course of action that is recommended as a requirement for a claim of unfair (constructive) dismissal is that you have worked with your employer for a minimum of two years.  Constructive dismissal claims are also legally complex and it would not be advisable to resign without having first obtained detailed legal advice.

Secondly, it would appear to me that in operating a rotational shift pattern, your employer is applying, in the words of the Equality Act 2010, a “provision, criterion or practice” which would put many women at a disadvantage.  I say this because a higher proportion of women than men have childcare responsibilities, and the operation of the rotational shift pattern makes arranging childcare very difficult.  This being the case, it is likely that the rotational shift pattern would be seen as being indirectly sex discriminatory as its effect is to place more women than men at a disadvantage.  Although employers may legally justify a “provision, criterion or practice” that is indirectly sex discriminatory, for example, for business/efficiency  reasons, it is unlikely that adhering to such a strict shift system would be seen as being a proportionate way of achieving their intended aim.  It is therefore likely that their justification would not be a sufficient defence in law.  The fact that they do actually allow other employees to deviate from this shift pattern would be further evidence of this.

In light of the above, it may be advisable to submit a grievance telling your employer what was agreed within your job interview, and explaining the difficulties that not being able to work night shifts only is causing you.  If you do not receive a favourable response, the only alternative would be to issue tribunal proceedings, however, I would strongly urge you to take legal advice before doing so, as this is a complex area of law.





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