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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47362
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I need an advice since my manager and HR is forcing me to change

Resolved Question:

I need an advice since my manager and HR is forcing me to change shift from morning which I do for 3 years, to be changed to rotational. I didn't agree and I've suggested to be moved to other department so I would do morning shift only. They said there is no other vacancies for me, but they put job offers and new staff is hired on both morning and afternoon shifts. Rest of my collegues agreed to HR that they are available to do rota shift but they've been told it is not necessary and they will do morning shift as before. I feel I've been treated unfair and not equal.I need help to keep my morning shift, please.They are pushing on me and I only have week left when they want to put me on EWOL if I wont agree.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 1 year ago.
Hello, I have benn working for my current employer 3,5 years now.
Expert:  Ben Jones replied 1 year ago.
Does your contract state you are employed to only do the morning shift?
Customer: replied 1 year ago.
It only state that my normal working hours are 42,5 hours per week. The current hours are locally agreed. The hours may change as the company required to change. Does that mean I have no other choice since the other employees can do the morning shift just because my employer wish to do so?
Expert:  Ben Jones replied 1 year ago.
There is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers. The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the terms in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, not communicated properly, not been applied consistently or has just been around for a few months is unlikely to qualify. Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:{C}· On how many occasions, and over how long a period, the terms in question have been applied - the more times they have been applied and the longer the period over which this has occurred, the stronger the argument they had become implied into the contract{C}· Whether the terms are always the same - large differences will make the argument they had become implied weaker{C}· The extent to which the terms are publicised generally - there must be widespread knowledge and understanding amongst the workforce that such terms were being applied You may tell the employer that you believe the morning shifts have become implied into the contract through 'custom and practice' and see what they say. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by taking your case to an employment tribunal, although you are free to raise a grievance with the employer first to try and deal with this internally. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
I feel depressed and alienated after I have been asked to change my shift, since all of my collegues work from 6am and I have been left on 8am. I spend my breaks completely alone. Can they refuse to move me to some different department?If I would like to raise a grievance with my employer what arguments should I use to make it more reasonable?
Customer: replied 1 year ago.
Moreover my manager let the other worker to change her shift as she asked them, because she has children at school age. I feel I haven't been treated equally with her since my request has been refused.
Expert:  Ben Jones replied 1 year ago.
If you raise a grievance you would basically be arguing that the current shift you are on has likely been implied through custom and practice and that introducing changes to it would amount to a change to your contract. Point out that you were not offers any alternatives even though they recruited in other positions.
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