Work Trouble - contracted hours change ***SUCCESS***

[blinky123]

Hi people.

 

I'm in a big jam and I really need some advice! Let me start by saying I work for a BIG insurance company with thousands of employees. This is why I feel so aggrieved - I have a very simple request borne out of very difficult circumstances and I know that in terms of resources they are quite able to consider my request so I'm wondering why they are not.

 

Basically, I used to work part time at this company as well as attend university. I worked 15 hours a week. After my first year of uni I fell unexpectedly but happily pregnant. So my maternity leave came, I had baby, everything was fine until my return to work. So that I could claim working tax credit, I asked my manager about the possibility of working one extra hour to take it up to 16 a week which is the threshold for this benefit. She said I needed to put in a flexible working request to do this. I was puzzled because I didn't think it was a flexible working request as such, more just a change of contract. I mean, I wasn't asking them to be flexible because of my childcare arrangements or anything like that, I was going back exactly as before except one extra hour tagged onto the beginning of one of my shifts. This was in October 2011. It's relevant to note now that one of my shifts is 4pm-8pm in the evening, and this is the one in question now.

 

So fast forward to now. My mum and MIL have been looking after my little boy which has worked out great so far. For the evening shift, my mum would look after my baby and put him to bed. She was unwell leading up to the birth of my baby and had an operation the day after he was born and took quite a while to recover (this was in Jan 2011) but by the time I went back to work in October, she was able to cope with putting him to bed as he wasn't too heavy at that point and she could life him OK. Now he is very heavy and she has developed two massive hernias at her operation site so she can no longer look after him in the evenings as it is painful to lift him and could make her hernias worse. We always knew she was going to have another operation this year and I had planned for MIL to look after my baby while mum was recovering, but unfortunately now my MIL has had to take on an evening job because of money worries so she can no longer do it. My partner and I are together but after we had a lot of problems after my little boy was born we do not live together and he has his own business and does not return from work until 7pm. I cannot see a way I can get childcare for this shift any more and so I went to my manager and told her this. Basically she has come back to me and said these are my contracted hours and I have to work them. Her suggestions for childcare between 4-8pm for my one year old baby were:

 

1) Wheel him to a friends house in a pram and let him sleep in the pram until I get back to pick him up, take him home and put him to bed myself. (I'm not even going to respond to this one!)

 

2) Get a childminder to look after him. (I am simply not comfortable with a stranger coming into my home and putting my baby to bed, it's different having him be looked after during the day, I'd be fine with that, but not bedtime). Plus, would I even be able to find a childminder that would work those hours? Doubtful.

 

3) Get my partner to shut his business early (2.30pm as he works an hour away!) and have him come look after him (kind of defeats the object of us both working to provide for our child!)

 

4) Let him sleep over at a friends house (at 1 year old?)

 

The simple fact is, I'm really not comfortable with any one putting my baby to bed except for me, my mum and my MIL. Through unforseen circumstances I can no longer arrange childcare for that evening shift. My manager has basically told me to get stuffed and they wont help me. I wanted to move my 4 hour shift to earlier in the day so my MIL can look after baby before she goes to work. I feel so upset by this because they are a massive company with a lot of resources, and I've even been told that when I'm on my one weekly late shift they just move someone elses shift to an earlier one to accomodate my late shift, so it's not like they don't have the resources to help me accommodate this change, they're just saying because these are your contracted hours you have to fulfill it.

 

Also, my manager told me I'm not allowed to put in another flexible working request because I've already put one in in October and you're only allowed to put one in every 12 months, but I really don't think the request in October was a flexible working request as such? And I've since been told that it's at the managers discretion whether another can be put in. That's by the by though because even if I was allowed to put one in I'm sure they would not allow it.

 

So basically they have forced me to take holiday for this week's shift, and my manager has told me to go away and try and find child care for next weeks late shift, but after racking my brains I can't for the life of me work out what to do. There's no way I can get baby looked after. I asked her if they would fire me if I couldn't find childcare and she told me not to be dramatic, but I can't see any other way this could go unless they budge a bit? I feel like they are forcing me to ask my mum to do something she is physically not able to do, and she has called me today in tears because she feels so guilty, bless her.

 

I have forwarded my case to my internal union at work, and am going to the CAB tomorrow for more advice, but I'm so so worried now.

 

Can anyone help me with some advice??

 

Many thanks

 

blinky

[Gbarbm]

Hi Blinky123

Here's some info from ACAS for you;

 

There are many forms of flexible working. It can describe a place of work, for example, home-working, or a type of contract, such as a temporary contract. Other common variations include: part-time working, flexitime, job sharing and shift working.

 

Parents of children aged 16 or under, or disabled children under the age of eighteen (Working parents),*have the right to apply to their employer to work more flexibly if they have:

 

worked for their employer for 26 weeks continuously at the date that the application is made

not have made another application to work flexibly under the right during the past 12 months

The request can cover hours of work, times of work and place of work and may include requests for different patterns of work.

 

The request must be in writing to the employer and will need to state the employee's relationship to the child, and give a proposed start date. It will also need to state if a previous application has been made and what date it was made, and the application must set out what effect the flexible working pattern will have on the employers business.

 

The employer has a statutory duty to consider the request seriously, and to refuse it only if there are clear business grounds for doing so. When holding a meeting to consider the application employees have the right to be accompanied at the meeting by a fellow employee or certified trade union representative.

 

The 2007 Work and Families Act also introduced a new right for carers of adults to request to work flexibly. A 'carer' is defined as an employee who is or expects to be caring for an adult who:

 

is married to, or the partner or civil partner of the employee; or

is a near relative of the employee; or

falls into neither category but lives at the same address as the employee.

The 'near relative' definition includes parents, parent-in-law, adult child, adopted adult child, siblings (including those who are in-laws), uncles, aunts or grandparents and step-relatives.

 

Questions and answers

 

How must the employer respond to the applicant?

To comply with the procedural requirement employers must:

 

Arrange a meeting within the employee within 28 days of receiving the application

Allow the employee to be accompanied by work colleague if they wish

Notify the employee of their decision within 14 days of the date of the meeting

Arrange a appeal hearing if necessary within 14 days of being informed the employee wishes to appeal

Notify the employee of the decision of the appeal within 14 days after the meeting

What can an employee do if an application is refused?

Wherever possible it is better to reach agreement on flexible working within the workplace. However, if the application is refused at the appeal stage you can:

 

Have an informal discussion - there may be some simple misunderstanding which can be resolved in an informal route

Use the employer's internal grievance procedure

Seek assistance from a third party such as a trade union representative

Seek assistance from Acas through the conciliation process

Where agreement cannot be reached you may wish to consider:

 

A referral to the Acas Arbitration Scheme

Making a claim to an employment tribunal

What are some of the different types of flexible working?

Some of the most common types of flexible working are:

 

Part time working

Flexi-time

Job-sharing

Term time working

Working from home

On what grounds can an application be refused?

Examples of where an application for flexible working can be refused are:

 

The burden of additional costs

Detrimental effect on the ability to meet customer demand

The inability to reorganise work among existing staff

The inability to recruit additional staff

Where it will have a detrimental impact on quality and performance

If agreed is the new flexible working permanent?

Once an employer approves the application the variation in contractual terms is permanent and the employee has no automatic right to change back to the previous work pattern. However, agreement can be made between both parties that the flexible working can be for a specified time period or a trail period may be agreed.

[Sidewinder]

If the request made in October was not made using the statutory process http://www.direct.gov.uk/en/Employment/Employees/Flexibleworking/DG_10037051 then the employer cannot back out of a request made now as being within 12 months of a previous application.

 

Make sure that you follow this process to the letter and submit a formal request. If the employer refuses to accept the request, then submit a formal grievance stating that the approach made in October was not made as a statutory request for flexible working, but a request to increase your working hours for other reasons.

[blinky123]

If the request made in October was not made using the statutory process http://www.direct.gov.uk/en/Employment/Employees/Flexibleworking/DG_10037051 then the employer cannot back out of a request made now as being within 12 months of a previous application.

 

Make sure that you follow this process to the letter and submit a formal request. If the employer refuses to accept the request, then submit a formal grievance stating that the approach made in October was not made as a statutory request for flexible working, but a request to increase your working hours for other reasons.

 

Thanks for the advice. It does seem that the request I made in october was made by following the above procedure, however in my opinion I still don't feel it should have been made as a flexible working request because I wanted the change in working hours for other reasons, not to fit around my new childcare responsibities as you say. But because I wasn't aware of the this I just filled in the form they told me to, it now seems as though I dont have a leg to stand on? I didn't really know what I was filling in when I filled it in if you see what I mean. Should I still raise a grievance around the fact that I don't believe my original request to have been a flexible working request?

 

Many thanks

[blinky123]

And thank u for the acas advice, forgot to quote

 

They are my next point of call!

[Bigredbus]

HI,

 

How did you formulate your original request?

[blinky123]

HI,

 

How did you formulate your original request?

 

I just rang up my manager and asked her about the possibility of working one extra hour to claim WTC and she said I needed to fill in a form. She sent me the form through the post, and it had all sorts of irrelevant questions on it such as "why do you feel this change is neccessary?" (it wasn;t neccessary, it was a simple request!) and "What affect do you think this change will have on the business?" (very little!) and "how do you think the business could adapt to this change?" etc. But I filled it in anyway. Thinking on, when I reduced my hours from full time to part time for uni I didn't have to fill in anything like this, and that was a contract change,. It feels like just because I'm a mum, any request I make has to be done through a flexi request, which is silly. If I were a part time worker with a similar request without children, I'm sure the same route would not have been taken. I hope you get what I mean, I feel like I'm getting myself all in a fluster because I'm so upset and angry.

[Bigredbus]

Ok,

 

Did you know, at the time you filled that document, that it was an application for flexible working?

[blinky123]

Ok,

 

Did you know, at the time you filled that document, that it was an application for flexible working?

 

I guess I did, but I did think it was just protocol and I had to do it. Didn't think much about it. I know certainly that if I had been told it was the only request I could put in for 12 months I never would have filled it in. I would have asked more questions. My manager just told me yesterday that the fact that it is the only request I could make within 12 months was in the employee handbook so I haven't got a leg to stand on. Doesn't change the fact that I feel it shouldn't have been filled in in the first circumstance? I just did what they told me to do without thinking more in depth about it which is my fault I know

[Bigredbus]

Well,

 

This document you filled in defeats your objectives, as your intention(s) was/were to increase your working hours from 15h/week to 16h/week in order to reach the threshold for Working Tax Credit (WTC)...

 

Now, you could write a letter stating that you wish to revoke that request you did put in as your intention(s) was/were at the time a request for an increase of your working hours for the reasons stated above.

 

One question though... Did they refuse your flexible time request? and if yes, what reason, or reasons did they invoke?

 

I understand that your manager may have been confused as one of the elements relating to flexible working relates to the hours the employee is required to work...

[blinky123]

No they did not refuse it and I am now working 16 hours a week.

 

So should I follow the path of 'that flexible request should not have been made as my intentions were nothing to do with flexible work due to childcare etc'?

 

I'm not sure I follow your first paragraph, are you basically saying that because I filled that document in that I don't have a leg to stand on? That's how I feel. Im going to get fired over this for unauthorised absence, I can see it now!

[Bigredbus]

Wait a sec... if I may say so...

 

Your initial intention was to actually increase your working hours to 16 hours per week so you could benefit from WTC... I first understood that your request had been either refused or not processed...

 

Now, because of personal circumstances, your mum, mother-in-law and ex-partner situations, you have no one to look after baby while you are working that specific shift (16:00 to 20:00)...

 

(a) How many instances of ''unauthorised'' absence are we talking about here?

(b) Did you inform them of those absences prior to it? and gave reasons for it?

[blinky123]

No, I haven't had any unauthorised absences yet - I can see what's going to happen, they have told me they can't help me out with changing my shift, I will not be able to get childcare and will be forced to stay at home leading to unauthorised absences. It hasn't happened yet. They are refusing to budge even an inch and I am worried I will have absence in the future that they will refuse to authorise.

 

My main gripe is that they are telling me to lump it, I can't even put in a flexi request because I have already put one in. I'm really sorry, feeling like I'm making no sense at all, hope this explains it.

[Bigredbus]

Well,

 

Have a read at the following...

 

Employment Rights Act (ERA) 1998, s 57A

 

and read RBS v Harrison (2008) UKEAT/0093/08

 

You should also write to the HR department and transmit the details of your case, including steps you took so far to find solutions to your problem and that you are open to reasonable advice.

 

In my opinion they are being rather absurd and unsensible in dealing with your case.

 

One major point... do keep trace of every correspondence regarding this issue. Make sure that you approach them in writing ONLY, either by letter or by e-mail.

[blinky123]

Thank you very much for all your help. It turns out my manager has already spoken to HR apparently and this is where she is getting all her advice from. I will email from now on. Many thanks for your help I'll keep you updated.

[blinky123]

Well I wrote my boss an email stating my points and how I feel about the whole thing. The case you mentioned above seems almost exactly the same as mine apart from in that situation it was just one day but with me it is a permanent situation i.e. I will never be able to do the day and time they are asking of me due to childcare arrangements. The question is though, would a court (hoping it doesn't get that far!) be willing to accept that as a mother I am just not comfortable having a stranger look after my child at that time of day?

[blinky123]

I asked my manager for everything she said in our informal "catch up" in writing and she said no. She's forwarded my email I sent to her to the HR department for them to look at. I've since found out by reading my employee handbook that every single request for a change in hours has to be done through a flexible working request, however in the handbook it says "usually you will only be able to put one request in every 12 months". So this makes it sound like in extenuating circumstances you could put another one in and it's at their discretion. Would my situation be extenuating enough? I know even if I put one in it may be refused. If that happens I would just have to look for another job.

[Bigredbus]

Hi,

 

I am sorry to say but flexible working arrangements are regulated by ERA 1996, s 80F - 80I and, indeed, only one application may be made in any 12 months period.

 

However, due to the nature of your situation, it could help if you got in touch with your HR department personally and not through your manager.

[blinky123]

Hi,

 

I am sorry to say but flexible working arrangements are regulated by ERA 1996, s 80F - 80I and, indeed, only one application may be made in any 12 months period.

 

However, due to the nature of your situation, it could help if you got in touch with your HR department personally and not through your manager.

 

Unfortunately in my company the only time u can contact HR personally is when you are suffering bullying and harassment in the office and your manager is the problem. For everything else you have to go through your line manager. It has been raised a number of times by employees that are not happy with this but at the moment it's the practice we have to follow. Why would they word it in such a way as to suggest it might be possible to put in another request in the handbook if you can't? Why doesnt it just say "you can only put one request in every 12 months?"

 

Do you think there's anyway they will help me here or do u think I am destined to get dismissed here? I simply cannot make it into work for that shift any more.

 

Thank you for all the advice.

[Bigredbus]

Well, as worded in your handbook of employment, the term ''usually'' would mean ''as a rule'' and probably not meaning that you could apply a second time within the 12 months timeframe.

 

Now, how large is the company you work for?

 

An employer may refuse requests for flexible working only for one of the following reasons:

 

(a) the burden of additional costs;

(b) the detrimental effect on ability to meet customer demand;

© the inability to re-organise work among existing staff;

(d) the inability to recruit additional staff;

(e) the detrimental impact on quality;

(f) the detrimental impact on performance;

(g) the lack of work during the periods when te employee proposes to work;

(h) the planned structural changes;

(i) other grounds which the Secretary of State may specify from time to time.

 

Try to see if other options may be investigated, like shift swapping, compressed working hours, or even annual hours...

Edited February 16, 2012 by Bigredbus

[blinky123]

The company I work for is one of the 15 biggest companies in the world. It is huge. Thousands of employees in the UK. This is why I'm finding it so difficult to swallow, there's no question of them not being able to cover my shift when I am not there, I have been expressly told that a number of times. I don't understand why they are being so difficult over a question of only 4 hours a week when the only reason they are refusing to help me is because I have to work my contracted hours, it's not because they don't have the resources to cope with me not working this shift if you see what I mean.

 

They're not refusing my request, they are refusing to consider a request as I have already made one. I think I will need to hand in my notice over this and I really don't want to, I love my job and apart from this particular shift, the hours are perfect. The only other option I think I might have is to take unpaid parental leave for that particular shift until I have lined myself up with a suitable replacement job and then hand my notice in. Time off for dependants apparently doesn't count because it is not an emergency. Can you take unpaid parental leave for one shift and still work the rest of the week or does it have to be unpaid and you have to stay off work permanently throughout that time?

[mariefab]

You need to give 21 days notice (although this can be less if your employer agrees) and it must be taken in full week blocks.

[blinky123]

Can I claim income support at this time? I'm guessing not! Gosh I really don't know what to do... Think I should just hand my notice in.

[blinky123]

So I spoke with my manager again today. She reiterated what she had said before at the start, they will not look to change my shift at all. I'm less angry now, I guess I understand that you can only put in one flexi request in a 12 month period, but surely due to circumstances beyond my control there has to be some sort of discretionary process that goes beyond the statutory requirements?

 

What I would really like to know from any of you very knowledgeable people, is what would be considered "reasonable" time when referring to the employees right to have time off for dependants?

 

Work have said they will look to help me on a rolling 4 week basis, so this week they have managed to change my shift, next week they may be able to let me have holiday, the week after unpaid time off etc, so I am grateful for that. But my manager did say that there may come a time when they can no longer accomodate this and it would be a case of if I miss a shift it would be classed as unauthorised absence which is a case for a disciplinary or even gross misconduct.

 

I have rung about 6 or 7 childminders and all have said 'no' and have told me I'll have a job finding someone who would look after my child at those unsociable hours. I know that an employee is entitled to a "reasonable" amount of time off for dependants if no alternative childcare is available, and that's where I'm at now, I cannot find anyone for love nor money to look after my child for that shift going forward. I don't want to have unauthorised absence and have tried my best to find alternative care and I can't find any. Part of me thinks I should just hand in my notice, but people I have spoken to about it think that my employers are being unreasonable. It's awkward because on the one hand it would be so easy for them just to change my hours but they won't which paints them as unreasonable, but they are saying they will do things to help me until my home-life situation improves. I can next put in a flexi request in October so this is potentially 7 months of weekly worring about how I can cover my shift, I don't think I can take the stress of it for only 4 hours a week!

 

Thanks for listening...

[becky2585]

Hi there

 

There's no requirement to give 21 days notice or to take it in a weeks block regarding dependant leave, so I'm not sure where that's come from? Marie I think you're getting confused with Parental Leave (easily done!) which is only available if your child is under 5 for a maximum of 13 weeks. It is indeed usually taken in a weeks block, though.

 

Regarding dependant leave, you have the statutory right to a reasonable amount of time off, as you know, to cover emergencies. This unfortunately doesn't cover situations which you are aware of in advance, as you are expected to be able to cover such periods with either annual leave or alternative childcare.

 

The best course of action here would be to check whether the formal procedure for making a flexible working request was actually followed, as only one FORMAL request can be made annually. Many companies follow an informal procedure, as the rules set down in the Flexible Working Regs are quite complex. The request can only be rejected on certain prescribed grounds under the formal procedure, so there's a possible breach if they did follow the fair procedure and the request was treated formally.

 

If the formal procedure was followed then a grievance alleging a breach of the Regs could be raised. You could even bring an ET claim, if they could not justify their refusal to alter your work pattern.

 

If the legalities are all in place, but you still can't find a solution, you could try resigning and claiming constructive dismissal citing indirect sex discrimination, but this isn't recommended. I know personally I'd be stuffed if I couldn't work standard hours so you have my sympathy!