Associate Solicitors Tabytha Cunningham and Charlotte Farrell discuss employee rights regarding changing shift patterns.
Shift working is now common and can offer practical benefits for parents, allowing them to work around family life. However, fluctuating demand connected to the Covid-19 pandemic has meant that more employers are looking to alter shift patterns at short notice or make changes to hours.
These changing requirements put parents in a difficult position. With childcare providers still tending to require parents to commit to fixed days, parents are less likely to be able to alter their schedule.
So what if you find your shifts switched with little notice or your employer wants to permanently change your schedule? Can you refuse the changes because you can’t get childcare cover?
If your contract sets minimum hours only, or says that your hours are based on the employer’s rota, your employer can generally change your shift pattern. Contract terms can be implied over time, however, so if you have actually worked the same pattern every week for some time, you may still have an argument that this pattern has been implied into your contract.
If your contract specifies the times that you are required to work, then your employer will need to consult with you about any change and ask you to agree to this.
The first thing to do is make it clear to your employer that the proposed change causes you difficulties.
A solution often comes down to negotiation between employer and employee, taking into account the needs of both and considering all the options available. As an employee, it is important to set out your issues and concerns up front.
As an employee you have the right to request a change to your working arrangements, including any shift patterns. Anyone can now request flexible working to secure the hours they would like. You should submit your request in writing, with reasons.
Your employer has to follow a set process and must genuinely consider your request. A request can be turned down for one of eight legal reasons.
To increase the chance that your request is accepted, it’s helpful to:-
If your employer is unsure whether your solution will work, a good option is to agree a trial period.
Working mothers have additional protection as it is acknowledged that mothers tend to bear the burden of childcare responsibilities. If an employer applies a policy to everyone, such as a different shift pattern, which has a particular detrimental impact on women with childcare care responsibilities, this can be indirect sex discrimination.
Employers in this situation have to show that they have a legitimate business aim in changing shift patterns, for example, they need to meet customer demand, and that they cannot achieve this in a less discriminatory way.
This is why it is important to emphasise the fact that your request is related to childcare, as this makes it more difficult for your employer to fairly refuse.
*Tabytha Cunningham and Charlotte Farrell are Associate Solicitors at Paris Smith. To read more about employment rights click here. If you have a question for one of our employment law experts, please email it to email@example.com.