I’m a registered nurse and am being redeployed to intensive care which I totally understand. My contract states that I should do 30 hours a week, but I have been told I will do 36-hour shifts [3 x 12 hours]. I dropped to 30 hours as I was finding it really difficult and it was making me ill. I am being told that I don’t have a choice. My contract states 30 hours a week. Do you know where I stand on this? HR are difficult to contact. I tried to compromise and ask that could I at least have my night shifts split through the week so that I do not do more than two in a row and this was also denied. I’m already feeling extremely unwell mentally and the thought of working over three nights with no sleep is making me feel like I just can’t do it. At least if I’m on my 30 hours I can only do two nights in a row max. What can I do?
I understand that the query is whether an employer can compel an employee to work 36 hours per week when they are only contracted to work 30 hours per week. This is in circumstances where the employee is concerned about the impact that it will have on their health if they work three 12-hour shifts a week (as opposed to two 12-hour shifts and a six-hour shift). It is not clear whether the individual in this case is being paid for the additional hours that she is being required to work, but it is assumed that she is. Please note that in preparing this note, I have not reviewed the contract of employment.
The general position is that an employer who imposes a contractual change without the employee’s express or implied agreement will be in breach of contract and the original terms of the contract will remain in place. However, it will be necessary to determine whether increasing contractual hours by requiring an employee to work six additional hours a week would be deemed to be a breach of contract (particularly if there is a corresponding increase in pay and it is in accordance with the employer’s requirements and also if there is a clause in the employee’s contract which requires the employee to work such additional hours as may be required and/or gives the employer the right to vary the contract).
In this regard, increasing an employee’s weekly hours may not be deemed to be a breach on its own (particularly in these unprecedented times when the employer’s resources are stretched to such an extent), but when coupled with the potential impact on the employee’s health it may well be. An employer has a general duty under the Health and Safety at Work etc Act 1974 “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all [its] employees.” Therefore, it is important that the employer is made aware of the impact such a change in hours (and shift pattern) is likely to have on the employee’s mental health.
As long as an employee has made it clear that they are not agreeing to the change, notwithstanding their decision to continue in work, they should not be found to have impliedly agreed to the change, provided the circumstances do not suggest that they have subsequently changed their mind. If the employee works the shift pattern and additional hours without objecting and protesting then she may be deemed to have acquiesced in the breach.
Therefore, options available to the employee include:
i) Raise a grievance (in writing) under the grievance procedure and if possible, support this with a doctor’s note. In any event, details of the anticipated health implications (based on previous experience) should be highlighted to the employer in the grievance and also the impact on work and performance. In submitting your grievance, it is always advisable to suggest how you would like the grievance to be resolved. So whilst the best result may be that you revert to your 30-hour week shift pattern, you may want to mention (if applicable and depending on health implications) whether there are any alternatives you may consider such as rotating your hours from one week to the next.
ii) Consider offering to accept the change in hours and shift pattern on a trial basis (in writing), and then if it doesn’t work out and you begin to see the reoccurring signs of the anticipated adverse impact on health then reject the imposed working hours within a reasonable time.
iii) Potentially the employee may be able to resign and claim constructive dismissal (on the grounds that the employer has breached the implied duty of trust and confidence by unilaterally increasing the working hours (i.e. without consent) and changing the shift patterns without taking into proper consideration the impact on the employee’s health in doing so). This will only be an option where the employee can establish that the change amounts to a repudiatory breach of contract. However, it is strongly recommended that a grievance is raised first in these circumstances (given the unprecedented times and the strain on the employer and resources) and that the health issues are properly brought to the employer’s attention and that the employer is given the opportunity to resolve the situation and negotiate working hours/shift patterns that work for the employee so far as possible.
It should also be noted that part-time employees should not be treated less favourably than a full-time comparator (applying the pro rata principle) under the Part-Time Workers Regulations. This principle means that, where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the full-time comparator. As such, the employee should receive pro rata entitlement to pay, annual leave and other benefits. This may be something to consider and keep under review.
*Sally Tomlinson helped with answering this question.