Employer Cancelled Flexible Working Contract & Now Disciplinary

[gleno]

Hey Guys,

 

 

 

See if you guys can assist me. I have been working Flexible Working since 2015 as I look after a disabled wife and a child. Recently during a meeting with my manager, my manager informed me that he wants to cancel my flexible working and wants to increase my working days from 3 (under flexible working) to 5 days a week. I was given 2 weeks notice and given a date when this change will be applicatble. I objected to this decision, but the manager simply announced his decision and ended the meeting and said no further discussions.

 

 

I received his decision in writing with inaccuracies in statement to which I objected, as his decision contained various factual discrepancies and asked him to give me evidence to substantiate his reasons. I have however, not yet received them. I further wrote to them formally rejecting the proposed changes to the terms of my contract and informed them I would be sticking to the currect terms of my contract and would be working 3 days a week only.

 

 

I then received phone call asking how I was from another manager as I had gone AWOL. I asked this manager to check my 2 letters that I sent in and have not received a reply to yet as these letters clearly address that I do not agree to new terms and I would be work 3 days only. I then had further discussion with another manager and I told him exactly the same that I am expecting a reply to my previous 2 letters.

 

 

I then received a letter from another manager informing me that I have gone AWOL and if I do not turn up under new terms i.e. 5 days a week I will be marked down AWOL.

 

Today I have received another letter calling me in an investigation for Disciplinary hearing regarding my AWOL. All of this is despite:

 

 

1) Management, unilaterally changing my terms of contract.

2) Management, not replying to my objections I raised in response to their decision.

3) Me formally rejecting their proposed changes.

4) Me informing them that I will be doing my shifts under flexible working and that I have not had response to my 2 letters.

 

 

Can someone kindly guide me,

 

 

1) am I wrong here?

2) Can I be sacked in this AWOL hearing? knowing that I have already told them why am I not turning up to shifts?

3) Can flexible working be unilaterally changed?

4) Should there not be a status quo applied till my objections raised are answered?

 

 

Thanks

[Emmzzi]

I think the flexible working is important but also a red herring as they are changing your terms of employment. See here. Use this first.

 

 

 

http://www.acas.org.uk/index.aspx?articleid=3971

[gleno]

I think the flexible working is important but also a red herring as they are changing your terms of employment. See here. Use this first.

 

 

 

http://www.acas.org.uk/index.aspx?articleid=3971

 

 

Thanks Emmzzi,

According to ACAS link

 

An existing contract of employment can be varied only with the agreement of both parties. Changes can be agreed by with either on an individual basis or through a collective agreement. When any change to a contract of employment occurs the employer should give written notification of the changes in writing, within one month of the change taking effect.

 

 

As I said in our meeting we were not even given a chance to say our side and were given 2 weeks time for this change to implement.

 

 

Bigger issue is that now company is taking me down the route of disciplinary for AWOL

[Emmzzi]

Is there a union at your place of work? You could really use some in person help!

[gleno]

Is there a union at your place of work? You could really use some in person help!

 

 

Union is looking into this matter and according to them the employer is at wrong and they can assist for unfair dismissal once I get sacked, NOT before

[Mr.P]

In my opinion, the union should be helping in order to prevent the unfair dismissal. But things don't always work like this.

 

You say you have to provide care for a disabled partner and child. Can't help wondering if the employer would fall foul of the disabled & discrimination laws. Perhaps Emmnzzi could comment.

[gleno]

In my opinion, the union should be helping in order to prevent the unfair dismissal. But things don't always work like this.

 

You say you have to provide care for a disabled partner and child. Can't help wondering if the employer would fall foul of the disabled & discrimination laws. Perhaps Emmnzzi could comment.

I have raised formal concern, both during the meeting and in a formal letter of concern that I have carer responsiblity and childcare responsibilty and warned the employer about the the impact of these changes to welfare of myself and my family. I have formally informed them that I need to carry on flexible working due to this very reason

[Emmzzi]

Hi, would need a lot more info to decide if there's a discrimination case there, but it's def. potential, Mr. P. It's much better if it doesn't need to get that far.

 

 

 

Union reps in other places I have worked would be taking the manager aside for a quiet word and saying, "Look, I know we got busy and you need more hours, but you may not be aware of this leglisaltion, can I have a word before it escalates, I'm sure there's an answer..."

 

 

I would ask the regional/head office if that is a thing which they could help with.

[gleno]

Hi, would need a lot more info to decide if there's a discrimination case there, but it's def. potential, Mr. P. It's much better if it doesn't need to get that far.

 

 

 

Union reps in other places I have worked would be taking the manager aside for a quiet word and saying, "Look, I know we got busy and you need more hours, but you may not be aware of this leglisaltion, can I have a word before it escalates, I'm sure there's an answer..."

 

 

I would ask the regional/head office if that is a thing which they could help with.

 

 

This is the advice from Regional/Head Office

[Emmzzi]

It's bad advice, so push harder.

[sangie5952]

It's bad advice, so push harder.

 

I agree. As Emmzzi often points out, you have no way of verifying who anyone on the internet is, but if you wish to believe it, I'm a union official and if this really was said to a member I'd have some choice phrases to use, some not very polite. Assuming, of course, that this is the whole story, because for one reason or another, sometimes perspectives don't match.

 

Having said that the ACAS quote is a little light too. It actually is entirely possible to effect a contractual change without agreement of the employee. It happens a lot. So don't think it can't be done. It can. It is. Done correctly, it's legal.

Edited June 5, 2018 by sangie5952
Fix the autocorrect typo ;-)

[king12345]

I won't go into discussions on what you should could do otherwise I'll get attacked, but gleno, you are the kind of employee that make the workforce proud.

Stick to your guns and they'll most likely back down.

If they won't, et will compensate you.

Keep them on their toes by sending all communication recorded delivery.

They hate these evidence in disciplinary, exposed them as the fools they are.

[gleno]

I agree. As Emmzzi often points out, you have no way of verifying who anyone on the internet is, but if you wish to believe it, I'm a union official and if this really was said to a member I'd have some choice phrases to use, some not very polite. Assuming, of course, that this is the whole story, because for one reason or another, sometimes perspectives don't match.

 

Having said that the ACAS quote is a little light too. It actually is entirely possible to effect a contractual change without agreement of the employee. It happens a lot. So don't think it can't be done. It can. It is. Done correctly, it's legal.

Hi Sangie

I checked again and My union representative have asked me to seek legal advice. Once again I sought assistance from union’s legal department and they advised to send me paperwork so they can begin initial vetting for potential claim of unfair dismissal.

For their advice I should tell my employer that I will be working under protest. But biggest question is how? Given my circumstances

Also even if we play devils advocate and say employer can anull my flexible working then when I raised objections to them

[sangie5952]

I understand your concerns, but you need to ask the legal team how you work under protest. We have very little information to go on, and the law gives employers the upper hand in many things, so one false step can undermine a claim. I'd love to be as certain of life as others on this thread, and simply fighting means an ET win and compensation for you. But life isn't like that. By all means use boards like this to check up or clarify things you are being told, but get your union to tell you what and how to do things. They have a more complete picture, and it's them who will decide whether or not there's a legal claim.

[gleno]

I understand your concerns, but you need to ask the legal team how you work under protest. We have very little information to go on, and the law gives employers the upper hand in many things, so one false step can undermine a claim. I'd love to be as certain of life as others on this thread, and simply fighting means an ET win and compensation for you. But life isn't like that. By all means use boards like this to check up or clarify things you are being told, but get your union to tell you what and how to do things. They have a more complete picture, and it's them who will decide whether or not there's a legal claim.

I agree. As Emmzzi often points out, you have no way of verifying who anyone on the internet is, but if you wish to believe it, I'm a union official and if this really was said to a member I'd have some choice phrases to use, some not very polite. Assuming, of course, that this is the whole story, because for one reason or another, sometimes perspectives don't match.

 

Having said that the ACAS quote is a little light too. It actually is entirely possible to effect a contractual change without agreement of the employee. It happens a lot. So don't think it can't be done. It can. It is. Done correctly, it's legal.

Hi Sangie

I checked again and My union representative have asked me to seek legal advice. Once again I sought assistance from union’s legal department and they advised to send me paperwork so they can begin initial vetting for potential claim of unfair dismissal.

For their advice I should tell my employer that I will be working under protest. But biggest question is how? Given my circumstances

Also even if we play devils advocate and say employer can anull my flexible working then when I raised objections against their decision should status quo not apply?

My issue is that I have received no response from management and they are pursuing investigation path for me not attending work under new terms based on their decision and ignoring to Answer to my objections. I have even turned up to work on shifts under my flexible working only to be sent home and I have also informed management that I won’t be in on days they are expecting me to as I have written my objections to their decision twice but not heard anything back.

Where do I stand in an AWOL investigation given these circumstances?

[sangie5952]

You crossed posts with me - I replied to this above.

[gleno]

I edited the later half of the message which was posted as another reply. Sorry for the inconvenience.

Most importantly do you not think by me raising objections a status quo would apply to employers decision?

And given I have told employers that I am awaiting response and doing shifts under my old terms and also informed them that I won’t be in days they are proposing where do I stand with AWOL Hearing

[unclebulgaria67]

I edited the later half of the message which was posted as another reply. Sorry for the inconvenience.

Most importantly do you not think by me raising objections a status quo would apply to employers decision?

And given I have told employers that I am awaiting response and doing shifts under my old terms and also informed them that I won’t be in days they are proposing where do I stand with AWOL Hearing

 

I am not going to comments on the legal contract issue you have with your employers, other than to suggest that you think about contacting a Solicitors that deals with employment rights. Giving your caring responsibilities outside of work, there might be organisations ( e.g. charities) that help parents in these situations. I.e. They might have access to very good Solicitors that can take on cases. Perhaps there is a way to resolve this, if the employer is willing to do so, without it getting to the stage where they dismiss you, leading to an employment tribunal.

 

If you did end up getting dismissed from your employment, how easy would it be to find suitable alternative employment where you live ? In some areas of the country, there are not a lot of employment choices and even if there are many jobs available, how many would be flexible.

 

Have you looked into what help you can receive outside of work, so you are able to work the hours your employer now requires ? Have you had a benefit review with an advisor from say Citizens Advice ? It might be worth doing so. Billions of pounds of benefits people could claim go unclaimed every year, because people either don't know they were eligible or don't consider they need Government benefits,

[sangie5952]

Do not consult another solicitor! You have a union. Go elsewhere now and they will wash their hands of you. You cannot have two legal advisors. Only go elsewhere if you have decided yippy don't want union support or they won't give it to you.

 

And honestly, I can't tell you what to do. This is the unions job. So whether I think the status quo should apply is irrelevant. And what I advise you to do could be contrary to your best interests. In don't know the circumstances. You might be right. The employer might be. I don't have the information to say, and most importantly, you have a union who won't represent you if you go your own way and follow other peoples advice. So you really must talk to them. I'm not being difficult - I'm giving you the best advice you can get right now.

[gleno]

I am not going to comments on the legal contract issue you have with your employers, other than to suggest that you think about contacting a Solicitors that deals with employment rights. Giving your caring responsibilities outside of work, there might be organisations ( e.g. charities) that help parents in these situations. I.e. They might have access to very good Solicitors that can take on cases. Perhaps there is a way to resolve this, if the employer is willing to do so, without it getting to the stage where they dismiss you, leading to an employment tribunal.

 

If you did end up getting dismissed from your employment, how easy would it be to find suitable alternative employment where you live ? In some areas of the country, there are not a lot of employment choices and even if there are many jobs available, how many would be flexible.

 

Have you looked into what help you can receive outside of work, so you are able to work the hours your employer now requires ? Have you had a benefit review with an advisor from say Citizens Advice ? It might be worth doing so. Billions of pounds of benefits people could claim go unclaimed every year, because people either don't know they were eligible or don't consider they need Government benefits,

I really appreciate this advice and I am looking into available help recently. The issue is that the cost of such service such as childcare and carers outweighs middle class income. I am therefore looking into Citizen Advice and social services.

I have seen a solicitor yesterday with all paperwork and they have advised that I have a very strong case of resigning and claiming constructive dismissal or if I get sacked then for unfair dismissal. The issue around AWOL and previous issues shows that employers are retaliating as I am questioning them by writing to them. However, the solicitor needed barrister advice to ascertain chances of winning and that would be at a heavy cost.

I am so stressed with all this that I am struggling to cope with day to day life tasks.

[sangie5952]

I really appreciate this advice and I am looking into available help recently. The issue is that the cost of such service such as childcare and carers outweighs middle class income. I am therefore looking into Citizen Advice and social services.

I have seen a solicitor yesterday with all paperwork and they have advised that I have a very strong case of resigning and claiming constructive dismissal or if I get sacked then for unfair dismissal. The issue around AWOL and previous issues shows that employers are retaliating as I am questioning them by writing to them. However, the solicitor needed barrister advice to ascertain chances of winning and that would be at a heavy cost.

I am so stressed with all this that I am struggling to cope with day to day life tasks.

 

No, no, no! Any solicitor who knows what they are doing would never advise resigning and claiming constructive dismissal. The advice is always to wait to get dismissed. That improves your chances of winning a case. If that is what they said to you, they are rubbish.

 

And don't mention this to the union or they will drop you. You can't have multiple legal advisors.

 

Go back to the union. Ask them what to do.

[sangie5952]

Ps. Any solicitor who needs barrister advice just to assess a case isn't worth having! I can assess a case and frequently do. I can represent members and frequently do. A barrister is only required for complex cases - any seldom at the initial stages.

[gleno]

No, no, no! Any solicitor who knows what they are doing would never advise resigning and claiming constructive dismissal. The advice is always to wait to get dismissed. That improves your chances of winning a case. If that is what they said to you, they are rubbish.

 

And don't mention this to the union or they will drop you. You can't have multiple legal advisors.

 

Go back to the union. Ask them what to do.

The union advised that I send in all the evidence for them to access. They will do vetting to ascertain if I have any real prospects for case and if yes they will send me to partners solicitor firm

[Mr.P]

And don't mention this to the union or they will drop you. You can't have multiple legal advisors.

 

Go back to the union. Ask them what to do.

 

Most unions will have access to lawyers that specialise in employment matters. Mine even provides a phone line that I can call for free legal advice.

[unclebulgaria67]

The union advised that I send in all the evidence for them to access. They will do vetting to ascertain if I have any real prospects for case and if yes they will send me to partners solicitor firm

 

Agree with Sangie, that it is probably best to let the Unions legal side look at this. I only advised seeking another opinion, as you appeared uncertain whether to trust the Union.

 

Depending on the Union and their relationship with the employers perhaps they can resolve this with senior management and avoid it needing to go legal. They might be able to point to agreements in place about flexible working and managers not trying to enforce working hours employees cannot work, because of caring commitments etc. An outside employment Solicitor might not be made aware of all existing agreements/policies in place and therefore not be able offer best assistance.