Urgent: Resign or be sacked because you care?

[Catwoman A]

Hello,

We currently have a conundrum in our household and would really appreciate some advice.

My partner has worked for a certain company for over 5 years now but his contact did not specify particular hours in it, only that he would work a set number of hours per week.

My partner is also my carer and before now, this was fine. He would generally work 6am - 2:30pm (in reality until 4:30/5pm as he put a lot of his own, unpaid hours into that place out of conscientiousness). This has been the same since I met him (1.5 years ago) and now that he lives with me, the regular pattern is good as one of my conditions cannot allow me to have a changing shift pattern - it would be highly detrimental to my health and put me at greater risk for things such as heart disease and stroke.

As he does the cooking and housework and helps out with medications, shopping and accompanying me on outside ventures, he has been amazing.

The problem has now arisen with his workplace moving him to a different location and drastically changing his hours so that he has, for example, worked from 7am-3pm today but they want him to work 3pm to 11pm tomorrow night!

He was not informed that the new store had these sort of hours and as soon as he was informed, he put in an official request for flexible working hours - saying that he could be available from 6am until 4pm (5pm in reality for him) but they have refused it and allowed him to be given this shift tomorrow, which they all know is impossible because being a carer is not just a whim and I would not be able to function properly and my health would be jeopardised if he agreed to this.

He is thinking of going in at 8am tomorrow, to attempt to work a shift until 4pm, armed with a grievance letter but even with citing 'Customs and Practice' and working so hard for them all these years, I can't see how we can move forward from this because his original contract doesn't have the set hours in it.

They don't even need him to be there tomorrow so I suspect they are doing this just to be able to use 'Performance Management' on him and eventually get rid of him that way.

This is so unfair on him and I feel terrible that he is being forced to choose between my health and his job.

They say they offered him alternatives but they did not - they all had the changing hours in or were a permanent nightshift, meaning that I would have to be in a permanent night shift pattern to and would not be able to attend any of my medical appointments etc!

To make matters worse, they originally insisted on having a meeting with him to discuss his request on the day of an important hospital appointment that he had said he needed to take me to - they were fully aware that that was his day off to do that! Even the rearranged appointment meant spending several hours in work on another of his days off.

I guess our main question is this: Should he hand in his resignation and if so, should we put anything like 'Frustration of Contract'/'Unfair Dismissal'/'Constructive Dismissal' as our reason for this or should we wait for him to be sacked after loads of disciplinaries for being unable to work their latest hours? Also, how might this affect his entitlement to benefits such as Jobseekers?

Sorry this is so long. Thank you for reading this and please advise if you can. All help is greatly appreciated!

[renegadeimp]

I'm not 100% sure, but if the person has worked set hours over a considerable period of time, this can be taken as a contract of sorts.

[Catwoman A]

Thank you renegadeimp.

I would like to think so but things are moving so fast that we could do with more time to find out. I hope that it might help in some way.

[renegadeimp]

Try not to worry. People with specific experience in this kind of situation will be around today or tomorrow to help you.

[Sidewinder]

I think we need to see more specifics as to how the contract is worded in relation to working hours. How have they worded the rejection of the Flexible Working request and what is the nature of the employer's business - you mention a store, so is this retail work and is he employed in any management capacity?

[stu007]

Hi

 

I think the first thing to do is to request a copy of their Flexable Working Policy and Procedure.

 

This is the link to ACAS Website they also have a phoneline for advice: www.acas.org.uk/

 

This link to Carers UK may also be of use: www.carersuk.org/Information

 

These PDFs may also be of use:

Edited January 24, 2013 by stu007

[Catwoman A]

Thanks renegadeimp.

Hi Sidewinder.

Thank you for your response. He's just digging out his contract to check on the working in relation to his working hours. He works as a Deputy Manager, unfortunately and it is at a well known petrol station and store (not sure if I'm allowed to say the name on here or not?).

The rejection of his request for flexible working hours has been worded in a way that highlights their 'reasons' as 'Detrimental effect on the ability to meet our customer and business demands', claiming that employees are required to 'work across a variety of shifts in order to fully serve the customer'. It also highlights 'Alternative options discussed'. These were listed as:

1.) Part time Deputy Store Manager - less hours per week but still the varied shift hours ie not possible.

2.) Full Time CSA role (Night shifts) - aside from the pay cut involved, the night hours are not possible.

3.) 2 late shifts per week - another impossible 'option'.

I'll write an update on how his contract is worded very shortly.

Hi stu007.

Thank you for responding. He's now looking for his staff handbook, in the hope that there may be a copy of their 'Flexible Working Policy and Procedure' in there!

Thank you for the links. We wil be checking all of those out shortly. I love the name of the 'Who cares Wins' link. Hopefully we'll find some useful information in these.

[renegadeimp]

No. Dont mention any names. Theres no need to.

[Catwoman A]

Update: The contract states that his contracted hours per week are 40, working 5 days out of 7 but does quote underneath that certain employee roles (including his) are 'expected to work the hours necessary to carry out their duties satisfactorily'. Despite never having to work these very varied shifts before and even though this is not actually a choice for him, I still think that this statement is the one that might mean we're up a certain creek without a paddle...but I live in hope!

[renegadeimp]

I'm pretty sure theres a rule or something that says if he has worked certain shifts for a considerable amount of time, then that can be taken as his contracted shifts. Don't quote me on that though, im just pretty sure i read it when i was a union rep.

[stu007]

Hi

 

Another link for you better explains flexible working from a Carers View its the Carers Trust: http://www.carers.org/help-directory/right-flexible-working

[Catwoman A]

Update: Nothing on 'Flexible Working Policy and Procedure' in the handbook but he did officially request flexible working hours in writing. Should we still request a copy from them at this stage?

[Catwoman A]

Thanks renegadeimp. I believe that comes under 'Customs and Practice', which we'll be mentioning in the grievance letter he takes to work with him tomorrow.

Thanks stu007. Will check that one out too.

[Catwoman A]

stu007: Regarding that last link, when I read about the 'Legal right to request flexible working for employees caring for adults - Work and Families Act 2006', I asked my partner about it and he said he did quote that in the original flexible hours request. I noticed the only way for them to say "no" to that is the one they've picked - 'An employer may refuse a request only where there is a recognised business reason for doing so'. Looks similar to how they've worded their refusal letter *sigh*.

[stu007]

Hi

 

Now this is just a short part from ACAS:

 

What is the law on flexible working?

 

In April 2003 the Employment Act introduced the right for parents of young and disabled children to apply to work flexibly.

 

From April 2007 this right has been extended to cover carers of adults.

 

An application to work flexibly can cover:

• hours of work

• times of work

• place of work (as between home and place of business only) and must be taken seriously by the employer

 

Who can apply for flexible working?

 

The applicant making a request for flexible working must be an employee with a contract of employment – agency workers or members of the armed forces are not eligible. The employee must:

 

• have a child 16 and under (disabled child under 18)

• be the carer for an adult as defined by the Department for Business, Innovation and Skills (BIS)

• 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.

 

Carers

 

The Work and Families Act defines a carer 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 relative of the employee; or

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

 

For more information visit the BIS website at www.bis.gov.uk or Carers UK at www.carersuk.org.

 

Now I would probably give ACAS a phone call on this and explain the circumstances as you have here and the employers response to the request.

 

Also have a good read of the ACAS PDF posted on Fexible working.

 

Hope this helps.

Edited January 24, 2013 by stu007

[Catwoman A]

stu007: Thank you so much for this! I think phoning them tomorrow sounds like a good plan and I will make sure we review all of your links tonight. Thanks again.

[Emmzzi]

Inhids request, did he describe how the work could be covered with him doing a fixed shift? It is his job to come up with how, not the bosses.

[Catwoman A]

Hi Emmzzi.

Thank you for your input. The shift would still be the same length and the same work done within that time so it wasn't specifically mentioned.

[Emmzzi]

I think that may have been an error. It needs to be explicitly detailed. Will they let him try again? (Technically they only have to allow one application a year)

[Catwoman A]

He is writing his grievance letter as I type and I have suggested detailing this in there, pointing out that he would still be getting all of the workload done as previously but that granting him the flexible hours would benefit the business as a happy and supportive environment leads to more enthusiastic staff and this, in turn, benefits customer relations and service.

[stu007]

Hi

 

Have you had a read of the ACAS Pdf on Flexible Working? Specifically Page 4 of that guide on "How must the Employer respond to the applicant"?

 

Did they follow this?

[Catwoman A]

Hi.

Yes, we had a read of that one and they have followed the rules in there thus far.

He's gone in today to work an 8am until 4pm shift so he's going against the rota but they always need more people on a 'promotion changeover' day. No-one has said anything to him about it yet but either way, he will hand over his letter that was written last night, detailing his grievance.

I can see all of the enthusiasm's gone out of him for his job now and it's causing him a lot of stress and loss of sleep.

I know I shouldn't feel guilty because I can't help my conditions but it is hard not to when I see him seemingly being punished for putting the wellbeing of me first. Financially it will be a struggle when they force him out too. I'm scared that something will go wrong and he won't be entitled to any help financially and we may lose our home if we don't have a lot of luck very quickly!

Life can be harsh! Thank you for all of your help though. It helps us a lot to know that people out there care about helping those that are struggling.