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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work as a LGV driver. I work on a sliding shift rota over

Customer Question

I work as a LGV driver. I work on a sliding shift rota over an 8 week period as part of a team of 27 drivers. . Each week I have an allocated number on the driver's rota of between 1 and 27. For example Week 1 of the rota would see me starting my working week between approx 2030-2359 hrs on a Sunday evening and Week 8 would see me starting my working week at 1500 hrs on the Monday afternoon. My start time can fluctuate by as much as 6 hours each day due to operational demands. We can also be moved up and down the rota daily to cover holidays, drivers weekly/daily rest periods etc. It is a very flexible rota.

I recently applied for Flexible Working due to my childcare arrangements for my 2 year old daughter. This would enable my partner to go back into full time work as we can't cope with a single salary coming in to the household. I asked to go on permanent first driver on the rota to ensure I would be home each day to take my daughter to and from her nursery school (opens at 0845) during term times and be able to look after her during the school holidays when the nursery is closed.

Up until Mar 2012 the company had 5 drivers on fixed positions in the rota. They had a driver's ballot and voted this system out.

I had a meeting with my Operations Manager on the 171013 where I outlined and backed up my request. As a result he held a secret written ballot of the drivers in response to the following question.....

XXXXX XXXXX has applied for to be placed on permanent first driver under Flexible Working. Do you support this application?

I was informed in a letter dated 011113 that the ballot result (apparently) was no and my request was denied due to - inability to reorganise work within existing staff.

I have several questions.

Did the company respond to my request within 14 or 15 days? Meeting 271013 - response 011113.

If the ballot isn't set down in the Flexible Working Policy as part of set procedure is it valid or can the company claim it was gauging the effect on operational effectiveness?

Should the company have expanded upon my reason for the request at most drivers haven't even heard of Flexible Working and (by hearsay) they thought I was just after some unfair working advantage.

Do I have a strong case to appeal?

Would I be in my rights to refuse to cover any other position in the rota than that which I'm scheduled to do?

Many thanks for your time,

Richard
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

I will prepare my advice for you and respond on here shortly

Ben Jones :

To answer your specific questions:

1. Did the company respond to my request within 14 or 15 days?

The law requires the employer to write to the employee within 14 days of the date of the meeting to either accept or reject their request. You have stated the meeting took place on 27 Oct and the response was received on 1 Nov - if these dates are correct then obviously the response was received well within the 14 day period required. If you supplied the incorrect dates then please let me know so I can amend my response.

2. If the ballot isn't set down in the Flexible Working Policy as part of set procedure is it valid or can the company claim it was gauging the effect on operational effectiveness.

Whilst the employer would be expected to follow the steps outlined in their policy, it does not mean they are strictly limited to these and if necessary they can apply other methods when arriving at their decision. So if a ballot was necessary to understand whether such a change would have been effective, then it is possible for the employer to apply it.

3. Should the company have expanded upon my reason for the request at most drivers haven't even heard of Flexible Working and (by hearsay) they thought I was just after some unfair working advantage?

Yes you can argue that, for example it may have been better for the employer to explain why such a request has been made, that the law allows it and how it would have affected the other employees if it had been granted. However, as you can understand it is not a legal requirement to have included such information, or even hold a ballot so this is more of a personal argument than a legally backed one.

4. Do I have strong grounds to appeal.

An employer can only reject a flexible working request on a limited number of grounds. These are:

  • Planned structural changes
  • The burden of additional costs
  • A detrimental impact on quality
  • The inability to recruit additional staff
  • A detrimental impact on performance
  • The inability to reorganise work among existing staff
  • A detrimental effect on ability to meet customer demand
  • Lack of work during the periods the employee proposes to work

In addition, the employer has a duty to explain their rejection in writing. They must state why the specific business ground applies in the circumstances and include the key facts about their decision. These should be accurate and relevant to reason used.

However, when selecting the ground for refusal the test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not on the face of it import any question of reasonableness into this judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be questioned.

Therefore, if the employer has not relied on one of the set grounds to justify their refusal, or the facts they have used are incorrect or unreasonable, the decision can be appealed first before a formal grievance is raised. If that does not help, a claim can be made to an employment tribunal, if any of the following grounds apply:

If the employer has not relied on one of the set grounds to justify their refusal, or the facts they have used are incorrect or unreasonable, the decision can be appealed first before a formal grievance is raised. If that does not help, a claim can be made to an employment tribunal, if any of the following grounds apply:

  • The employer failed to hold a meeting, notify their decision or offer a right of appeal
  • The reason for refusal was not for one of the set reasons above
  • The rejection was based on incorrect facts

The claim should be presented to the tribunal within 3 months of either the procedural breach or of the date on which the employee is notified of the appeal decision.

5. Should I refuse to cover any other position in the rota for which I am not scheduled.

I would not advise it, especially if your contract expects you to do so because then it could amount to insubordination and be a disciplinary matter. Do not try to take the law into your own hands.

Customer: replied 3 years ago.
Hi Ben.

Please re-read my original question. The meeting was on 171013 not 271013. If their response dated 011113 does not fall 'within 14 days' of the original meeting does this legally negate their decision?

Thank you,

Richard
Expert:  Ben Jones replied 3 years ago.
Hi Richard, in your original question you said:

"Did the company respond to my request within 14 or 15 days? Meeting 271013 - response 011113" - this is what I based my response on.

Assuming the meeting was on 17 Oct then the response should have been received by 31 Oct at the latest. The relevant provision can be found here:

http://www.legislation.gov.uk/uksi/2002/3207/regulation/4/made

If the employer has failed to provide a response when required then you can make a claim in the employment tribunal and they can award compensation of up to 2 weeks' pay. the longer the delay the higher the compensation so a delay of just 1 day as in this case will most likely result in compensation at the lower end of the scale.

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.

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