Implied terms

[westmidsman]

Hi guys

 

Just fact finding for my OH who has worked for the same company for 2 and a half years now. She has recently had to take some time off due to various complaints (not all in one go just the odd days here and there - she hasn't been under any disciplinary procedures at any time) and is now being investigated for a neurological disorder. It is quite a serious set of investigations and she has told her manager what the implications of this disease are (if it turns out she has it). Now comes the issue we have, the management have now decided that they are going to change her shifts around to 'fit in with the needs of the business', however she has worked the same shifts since she started and needs the same shifts so she can manage her time with doctors appointments and kids etc. We think they are being deliberately uncooperative now they know about this potential problem she has.

 

Her contract doesn't state the hours she works, just the minimum contracted hours per week. She was offered the hours she has verbally at interview by her still current manager. What I would like to find out is at what stage do these hours become an implied term of reference in her contract and what rights do we have to make sure they can't push her out of her job due to a possible disability?

 

She has enough to worry about at the moment with the prospect of living the rest of her life not knowing what each day will bring without having to worry about losing her job as well. A stage may come in the future where she is unable to carry on her duties but she doesn't feel like she wants to join the scrap heap just yet.

[chesham]

Hi guys

 

Just fact finding for my OH who has worked for the same company for 2 and a half years now. She has recently had to take some time off due to various complaints (not all in one go just the odd days here and there - she hasn't been under any disciplinary procedures at any time) and is now being investigated for a neurological disorder. It is quite a serious set of investigations and she has told her manager what the implications of this disease are (if it turns out she has it). Now comes the issue we have, the management have now decided that they are going to change her shifts around to 'fit in with the needs of the business', however she has worked the same shifts since she started and needs the same shifts so she can manage her time with doctors appointments and kids etc. We think they are being deliberately uncooperative now they know about this potential problem she has.

 

Her contract doesn't state the hours she works, just the minimum contracted hours per week. She was offered the hours she has verbally at interview by her still current manager. What I would like to find out is at what stage do these hours become an implied term of reference in her contract and what rights do we have to make sure they can't push her out of her job due to a possible disability?

 

She has enough to worry about at the moment with the prospect of living the rest of her life not knowing what each day will bring without having to worry about losing her job as well. A stage may come in the future where she is unable to carry on her duties but she doesn't feel like she wants to join the scrap heap just yet.

 

Hours of work are rarely an implied term, and more usually an express term - this means that the hours of work are set (i.e. 37.5) but there is normally a clause within the contract which stipulate some form of flexibility - a common example is one which states that "at certain times, you may be requested to work at an alternative location or other duties as required with short notice" or something similar. However, if your partner had worked the same hours over a significant period of time, you should be able to argue that this is an implied term of employment - although 'significant' is open to interpretation - the longer the better!

 

The change in shifts could be a complete co-incidence - or not. However, most companies are perfectly entitled to amend shifts/hours to fit in with the business, depending on the industry, nature of the job. However, if an employee subsequent has or develops a disability, then the employer has a duty to make arrangements (where possible and reasonable) to ensure that the employee is not exposed to unneccessary risks or challenges based on that disability - nor to be treated any different. However, the discrimination will only normally apply if the disability has been diagnosed and confirmed. Of course, many people could claim discrimination based on a self diagnosis or a "google" search of a few symptoms. Therefore, the tests and/or subsequent investigations into your partners health may have no bearing on their leniency. Employee handbooks normally ask that medical or dental appointments are made outside of work (wherever possible) - however, usually impossible due to the NHS! However, there is not usually anything within the contract due to the possibility of a breach or indeed discrimination, and normally refers to the handbook/guidelines - these are normally viewed as implied terms as they cannot always be used as the letter of the law when it comes to disputes or guidance.

 

Discovering an illness at work is always a tricky problem, especially if it is one which requires tests, scans, waiting around, time off and a lot of worry on top of that - could be nothing, could be something, and I sympathise. In face, I think most employers would as they care about their staff. But then companies are running a business, and sometimes emotions have no part in their decisions therefore they oblige only their legal duty to employees.

 

I'd start with an informal discussion to see if any mutually agreeable arrangements can be made, and if not then to possible generate a more formal meeting or conversation to try and boost up your partners influence with these discussions.