Flexi working contract help please

[brandon99]

Hello can somebody please advise if they have any knowledge of the flexible working regulations.

In 2004 I applied for a contract variation in relation to the employment act.

I work in a distribution centre where approximately 400 people work across 3 shifts.

I was called to a meeting today to discuss my arrangement. I was told the business couldn’t support all the people on flexible working approximately 30 people.

I was told that everybody will have a review. The people who need flexible working will continue and the ones the company think do not warrant it will revert back to the warehouse rota

My Questions

Can an employer just decided to withdraw the flexible working arrangement as I was led to believe the changes were a permanent change to the contract.

Can the employer pick and choose whom they are going to continue to support. I believe all children are equal.

Is there a process in law do a company needs to follow to remove somebody from a flexi working contract

What are my options if I cant work the proposed changes

 

Will a change from family friendly shifts to non family shifts meet the qualification for constructive dismissal

Many thanks in advance

[SarEl]

I think that the answer to everything except the last question is "yes".

 

Family friendly working is not a right, despite what the press about it says. There is a right to ask for it, and there is a right to have the request considered. That is the end of the rights involved. There is no right to retain it even after it has been granted. The point is that it is a variation to the contract mutually agreed between employer and employee - the employee retains the right at all times to revert to their original terms. If such a reversion cannot be accomodated then that may be unfair dismissal or redundancy - or even discrimination! Depending on the circumstances.

 

Flexible working is always, in law, subject to business needs. If the employer is now saying that their business needs are such that it is adversely ipacting on the business, they have a right to review it, and they are certainly doing that correctly, by reviewing all such arragements. Whether refusing it in any individual case is lawful or not will then become, if challenged, a matter for a tribunal, consdiering the employers business case for refusal. When it gets to the tribunal - which will be in about 6 - 12 months time. And unless the employer cannot show good reasons for what they are doing, they will win. There isn't much detail to go on here, but judging by the approach being taken, the employer has taken good legal advice - I will lay bets that they have. In which case they will have pretty good advice on grounds for refusing too.

 

If you cannot work any proposed changes, then you don't have any options - you will undoubtedly be dismissed under some other substantial reason, and you will have to risk a tribunal. However, depending on the exact circumstances, it may be deemed a resignation - in which case you will get your wish because your case would have to be constructive dismissal - and less than 3% of such cases win. Very rarely without a lawyer. But I would recommend trying all you can to avoid a tribunal - even in the best of circumstances, the odds are against you, and the only difference is how large the odds against you are. Resolving this may involve some compromise - but if 30 of you can find a way to give some concessions and the employer give some, you could all still walk away happy (ish)?

[brandon99]

Thank you SarEl for taking the time to respond

 

I understand that the needs of the business change and the company have the right to review.

 

Am I correct in saying the company must have good business reasons to withdraw the work pattern agreed and be able to demonstrate what adverse effects its having on the business.

 

I read on the net a dismissal relating to somebody applying for flexi working is automatically unfair. Is this the same for somebody who has a contract variation and the dismissal is because of such variation.

 

I don’t understand how the company can choose who they are going to allow to remain on their flexible working arrangement. I understand everybody’s situation is different but the underlying factor here is the child. How can the employer decide what employee is going to have the benefit of remaining on a contract variation.

Am so confused L why does the legislation state it’s a permanent change when really its not! If the employer no longer wants it to be.

How can the employer simply decide to change the flexi working contracts rather than re organise existing staff. That may sound unfair to the existing staff however their contracts state their hours are subject to change. Where as mine states permanent.

 

I simply cannot work afternoon shifts. My employer knows this.

 

If I am one of the people they choose to revert back to the original rota how much notice should they give. Ive been with the company 13 years?

 

Do I resign on confirmation of notice or must I raise a grievance?

 

Thank you once again

Edited December 16, 2010 by brandon99

[brandon99]

An Update

I had my review today, following the advice already given here I asked my manager “how is the business changing”. I was told there would be more work between the hours of 6am to 2pm.

I pointed out to my manager that I work theses hours and therefore my flexi working agreement suits the business needs.

I was then told it would be easier if everybody was on a rotating shift pattern. I am now being progressed to the next stage of the review process.

Am really confused now

[colin813]

Brandon

When you start employment you sign a contract. One of the provisions of the contract is your hours of work.

However since the introduction of section 80f of the employment act whereby this act allows an employee to request a variation of the terms in relation to the hours worked etc as long as the employee meets the eligibility criteria.

Indeed once granted the proposed change becomes a permanent change to the terms and conditions.

However like SareEl pointed out. The business needs of the employer will always come first.

Though what you may deem a permanent change the employer will always have the right to change contracts as per business needs.

You are going in the right direction ask the employer how the hours you work impact on the needs of the business.

There are other legislations that may come into play if the employer cannot` justify any business reasons and try to impose a change.

[brandon99]

I had my next stage meeting today.

 

Again i asked how the business was changing only to be told the purpose of the meeting was to review my working pattern.

 

I was told i am being considered to have my agreement withdrawn and reverting back to a normal rotating shift pattern.

 

The manager wouldnt comment on the business needs, infact she seemed more concerned in trying to get my agreement to the change.

 

Later on a close friend of mine told me they are getting there own back due to me assisting a fellow worker with a discrimination claim.

 

Can anybody advise what should i do

[Roblynmouth]

Hi

 

I think you should read the replies again, what is the case in the UK is that you have to be a flexiable as you employer wants you to be.

If you think that their is a conspiracy against you, you will need to prove that, you employer dosnt have to prove his guilt.

I also think you are well late for Constructive Dismissal ETs usally expect the employee to walk sooner than waiting for the 'wrong result'

Howver what is on your side is that in changing your contract back to your original contract, the employer must take heed of the circumstances of the employees. So ignoring you so as to ensure that somebody else can watch football for instance is not aloud. Moreover if they have previosuly had flexi working, then they normally would be expected to give reaons why they are making these changes. There is also the Human rights act to consider which provides for a work life ballance. If for instance you were to discover all those who contracts were changed were women with careing responsbilites this could be Sex discrimination

As you can see Contructive Dismissal is not a path to tread lightly and never without legal help [are you in a Union?]

Also if they are out to get you, start keeping a diary.

Best of luck you will need that and more with CD

 

Ps No not all children are equall, those who have disabled children have extra rights

[brandon99]

Thank you Roblynmouth

I understand the comments made by the op, I also understand as an employee the business comes first and I will need to change as the business changes.

The trouble I have understanding is the fact that as suggested by the first manager there will be more work on the hours I work. Surely this is a benefit rather than an adverse effect on the business.

Another person who successfully had their flexible working request granted and solely works 2-10 has been told he can stay on his work pattern. This is so frustrating as the work is moving from his hours to mine.

Logically there is no benefit for me to work a rotating shift pattern.

I have asked for a meeting with the personnel manager to clarify the needs of the business.

If the company cannot justify through a genuine business reason why they want to change my work hours can they just serve notice?

[Roblynmouth]

Yes they can.

that's when the problems for an employee come in, as the law requires you to be flexible, which is why you have to ask your employer to explane the justification etc.

Changing working hours may not be as simple of benefits to the business either [although it has to said what other reason can their be] they may have to make reasonable adjustment for a disabled employee for instance. That right would come above your right to have a flexible pattern of work:-(

[SarEl]

Thank you Roblynmouth

 

I understand the comments made by the op, I also understand as an employee the business comes first and I will need to change as the business changes.

 

The trouble I have understanding is the fact that as suggested by the first manager there will be more work on the hours I work. Surely this is a benefit rather than an adverse effect on the business.

 

Another person who successfully had their flexible working request granted and solely works 2-10 has been told he can stay on his work pattern. This is so frustrating as the work is moving from his hours to mine.

 

Logically there is no benefit for me to work a rotating shift pattern.

 

I have asked for a meeting with the personnel manager to clarify the needs of the business.

 

If the company cannot justify through a genuine business reason why they want to change my work hours can they just serve notice?

 

As has been suggested previously, you need to separate out the two issues you raise here. The fact that this may be an action as a result of an action you took to support someone else is only relevant if you can evidence that this is the result of discrimiination because of that. Which I doubt you will be able to do.

 

The "business needs " of your employer do not limit to their busy periods - they may be to have experienced staff on a range of shifts, to balance out staff experinece for example. Without an explanation from the employer, it is hard to judge. So it still comes down to obtaining an explanation from the employer as to why they are refusing flexible working, and you may have to submit a grievance to obtain this.

[Mash It Up Harry]

SarEl - you're back! I've missed you, happy New Year BTW

[SarEl]

I have been - as I have been busy telling people! - in Ecuador and the Galapagos Islands, and only just got back. On the tail end of jet lag. Happy new year to you too - and sorry to Brandon99 for hijacking the thread with personal stuff.

[brandon99]

SareL you are more than welcome to use my thread as a greating, your knowledge is greatly appreciated in any shape or form

When an employee makes the initial application the company has to seriously consider the request and only refuse on one or more of the eight prescribed grounds.

Therefore how can the employer simply change its mind without firstly identifying a business need to make such change, this seems a back door exit from their duty to consider

.

Also, excluding parents with a disabled child, how can the employer choose who they wish to support with regards to the original application of flexible working?

From my understanding once an application for flexible working is granted this becomes a permanent change to the terms and conditions, I can’t see anywhere that allows an exit from the agreement apart from the usual contract change protocol.

Are there any arguments in law that will prevent or make the employer think twice about imposing a shift pattern change.

Thank you for any responses

[SarEl]

No, as I said before - a flexible working agreement does not in any way vary the prior contractual terms on a permanant basis. Just as the employee retains the right to return to their original contractual terms, so does the employer. I agree that it is rare, in my experience, for an employer to terminate such an agreement, but that doesn't mean that they cannot. So on technical grounds, the employer is not doing anything wrong in reviewing the situation if their needs have changed. That does not mean that a refusal to allow (continued) flexible working patterns will not be viewed as discriminatory by a tribunal - but it very definitely doesn't mean that it will be either. And the simple fact is that the odds of a tribunal coming down against an employer are low - that's just statistics. So any case has to hold together, because at least in the first istance the burden of proof would be on you. It is hard to discern the employers argument here - but that is because I don't have the full facts, not because there is necessarily anything wrong with it. I find it hard to credit that the employer would review everyone's working patterns and go through a whole process with 30 or so people, simply to get at you. That isn't to say that they haven't - but it seems a lot of trouble to go to, and if I am finding that line of argument hard to discern, so will a tribunal.

 

I am a bit confused about the reference to a child with disabilities - I can't see what point you are making as I am not aware that this matter has been mentioned by you previously (or a can't find it!).

 

But the simple fact is that you have to go through the process and see what the outcome is. The advice that you cannot claim constructive dismissal is incorrect - you would be expected in any such claim to see the process through. But it isn't a route that I would ever recommend anyway, and it's a last resort.

[brandon99]

Thank you SareL

 

I will go with the flow and keep the you updated. Indeed when the time comes which i`m sure it will i will be knocking your door for more advice.

 

Just one last thing, you state "a flexible working agreement does not in any way vary the prior contractual terms on a permanant basis"

 

I have read up on section 80f and it clearly states that once an application for flexible working is granted under this heading becomes a permenant change to the t+c`s so can you please expalin your comment

[SarEl]

You had me panicking that my brain had gone soggy while I was away there! Where does it state this clearly - because I have gone back to the legislation and it doesn't state it at all - clearly or otherwise. Are you reading the right version - parts of the Act have been repealed?

[brandon99]

Sorry SarEL

My mistake i have been reading that much info on flexible working its my brain thats turning to mash.

All the info on the bis, direct.gov, acas websites all state that a granted request will be a permanant change to the contractual terms and conditions.

 

[SarEl]

Oh God - potted law again! I've just been doing another one of those. The problem with potted law is that it often isn't exactly, well, correct! The actual law does not say that. It says that it is a variation of contract - and a variation does not imply, in any legal sense, a permanant change. Truthfully, your case is a bit unusual, because employers rarely do this sort of thing. Generally, if the contract changes back to the original terms it is usually at the request of the employee, and more often that not, as a result of wanting back their original terms (like full-time hours instead of part-time). But a tribunal, if it gets that far, would have to look at it in the same way as they would if an employer refused an application unreasonably. I think your employer is being very short-sighted, and I suspect that they may have some difficulty justifying this at a tribunal, so I can't see exactly why they are sticking to their guns when they must know that they are on shaky, if not necessarily perilous grounds. It seems an absurd situation to get themsleves into. In legal terms, as I said, they have approached this in the right way (so I suspect they have had some good advice), but in their shoes it seems a somewhat heavy-handed approach and they need to hope, if they stick to this, that they can justify the outcome. I cannot, because they have done this all the right way as far as I can see, tell you that you would win. It depends on what their arguments are, and the statistics aren't good for you. But them taking this risk seems absurd.

[brandon99]

Thanks once again SarEL

I think my best approach and i hope you agree or point me in the right direction is

A) keep asking why its so important for me to revert back to a warehouse rota

B) Ask what detriment would the business suffer if i continued working the hours i work

C) Ask why everybody is not reverting back to the warehouse rota

[SarEl]

Yes, that would be the way that I would approach it in your shoes. Get a definitive answer - because you need all those answers to make a claim anyway. By the way - you never explained the reference to disability - is this relevant or just part of a general tirade? I am asking because it may have some relevance.

[brandon99]

Thanks all especially SarEl

 

Ive a meeting with HR on weds

 

Will keep you all informed, as what happens to me will be of benefit to others

[brandon99]

Hi All

Just an update from today’s meeting.

At my meeting I raised concerns regarding a change to my working hours. I pointed out that I need to be at my sons school by 3pm to collect him. I also pointed out that I had nobody else to pick him up so it was really important for me to be there.

The response I had was “ why cant your wife collect him” I explained my wife don’t finish work till 5.15pm I also explained my wifes employer allow her some flexibility in her start time as she took our son to school.

I informed the HR manager the reason my request was granted back in 2004 was for me to be home in the afternoon to look after my son.

 

I explained I understand the business comes first and I would be willing to change my days off to help the business. I stressed any forced changed to my finish times would be unworkable on my part.

To this the reply was “well the business changes and its in my contract that the company has the right to change working hours”

I asked why is it so important for me to work a uniformed warehouse rota. The reply was “we need our people to be in the right place”

I asked what detriment would the business suffer if I continued working the hours I work. The reply was “ I am unable to answer your question as I don’t deal with operations”

I asked why isn’t everybody working flexibly reverting back to the warehouse rota. The reply was “as a company we are dedicated to supporting our staff that need support”

I reiterated what was said to me in a previous meeting regarding there would be more work on the hours I currently work.

I also pointed out that there is always overtime on the hours I work.

I stressed that my hours suit the business needs and no manager including HR have provided a sufficient explanation to why a contract change would be forced upon me. I notified HR I feel aggrieved by the whole process as it was causing me stress.

The HR manager said she would look into my concerns and get back to me.

My head was thumping when I left the office

[SarEl]

Well it's now a matter of waiting and seeing.