Told to accept new shift or face the sack: ask the expert

I have worked for the same well known supermarket for the last 24 years. Last week we were told my scheduled hours need to be changed from an evening to days ,which I cannot do as I have a disabled child to care for. It states in my contract that I am flexi and that my schedule cannot be changed unless there is agreement from both parties. These hours were given by my old manager as she knew of my circumstances. I had been told that I will be given 16 weeks notice in which to change or have to leave the company. The annoying thing they are saying is that it is business needs, but they are taking me from my position on late nights and changing someone else’s scheduled hours to do my job. Can I be sacked like this if I don’t agree or can I claim redundancy at all? It just seems they are just swapping people around and upsetting people.

I understand that you have worked for your current employer for 24 years and I assume that you have always worked the same evening shift pattern. The inclusion of the word ‘flexi’  in your contract suggests that your employer may well have a discretion to change your hours and that a degree of flexibility is required on your part. However, if you have always worked the same evening shift pattern, you could argue that these hours have by implication become your contractual hours and that, at stated in your contract, your working schedule cannot be changed without your agreement.

If you do not agree to the change in your working pattern and assuming that the change is not authorised by your contract, your employer has two main options if it wishes to push through the change, namely, unilaterally imposing the change or terminating your employment and offering re-employment on the new terms.

If your employer unilaterally imposes the change in your working hours without your consent your employer will be in breach of contract and the original terms of the contract will remain in place. You can respond to the breach in a number of ways, for example, you could work under the new terms under protest and bring a claim for breach of contract. If the breach is fundamental going to the root of the contract, which it may well be in your case, you could resign and bring a claim for constructive dismissal. I would, however, always advise you to take further legal advice before taking this action and resigning. Another option for you would be to continue to work on your old hours and refuse to work under the new terms, although clearly this option would be likely to aggravate the relationship between your employer and you. If your employer does unilaterally impose the change, you should submit a grievance setting out your objections and giving your employer the opportunity to address your concerns.

It is unlikely, however, that your employer will unilaterally impose the change on you. It is more likely to terminate your existing contract and offer continued employment on the new terms. If your employer follows this route, it should give you due contractual notice to terminate your existing contract. You may have an unfair dismissal claim in this situation, but this will depend on a number of factors, for example : –

– Your employer’s motives for introducing the changes.

– Your reasons for rejecting the changes.

– Whether you were warned about the proposed changes.

– Whether the changes and full effect of those changes have been sufficiently and clearly explained to you.

– Whether your employer has undertaken an assessment of the impact of the changes on employees and whether it has considered alternatives to any changes.

– Whether your employer has attempted to obtain your voluntary agreement to any of the changes.

– Whether a reasonable and genuine consultation process has taken place.

– Whether a majority of the employees affected have accepted the changes.

– Whether any recognised trade union recommended or objected to the changes.

Your employer should give you the opportunity to discuss your concerns. If your employer does not meet with you to discuss your objections, you should write to your employer with your concerns and you should voice your concerns throughout any procedure that your employer follows. However, if your employer is intent on imposing the change, it is likely that it will push it through by terminating your employment and offering new employment on the new terms. As I have said, however, you may well have an unfair dismissal claim in this situation. Such a claim must be brought within three months of dismissal.

Your employer’s action in changing your hours may also constitute unlawful disability discrimination under the Equality Act 2010 due to the fact that your shift pattern was agreed in order for you to care for a disabled relative and your employer is now changing your schedule. It would be advisable to raise this as part of your discussions with your employer and as above, this should ideally be put in writing to your employer. Any claim for disability discrimination must also be submitted within three months of the discriminatory act.





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