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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44915
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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hi, i've been working for my company for just over a year. in the past 3/4 months i have had to put my child into childcare (she is nearly 15 months old) and i have had a verbal agreement with the manager about the shifts i work. he would ask for my availability and i would send him the shift the i can work.
3 weeks ago my area manager told me i had to go to a new restaurant as a manager from there needed to be moved to mine. At the time i stated that my concerns were the travel and that i had this agreement about my shifts and that would the new manager accommodate them. He told me that i don't have a choice and that i needed to go.
My manager organised a meeting for me with the new manager and him. In this meeting i told her my concerns and she said she would to her best to accommodate. I gave her the dates in this meeting that i had booked in shift wise up to New years week. She then sent me and email with my rotas and 4 shifts were different. This has meant that nearly £40 on two different occasions has been wasted in terms of childcare. We have child care dates booked in up until March 2016. After my 3rd attempt i finally got hold of the new manager and said that i could swap about 2 shifts but is there any chance she could look at the others. During this phone call she stated that she had a business to run and that its not her fault that i am raising a family and that me and my partner work in the hospitality business. She said between those things something would have to give. She asked for my next periods hours. I emailed her these, New years week then i was on pre booked holiday for 2 weeks.
She emailed the rota back within minutes and 3 shifts were different. She had asked me to work something over new years so i told her i would work new years eve day. She put me on to work New years night and a middle shift new years day. I have no one to look after my daughter around the shifts given. I emailed her back and explained this and she ignored me up to today when she emailed saying to attend a meeting with her and my area manager to discuss my hours and contract. i emailed her back saying the date selected didn't suit as i had just swapped that shift out with childcare to look after my daughter. i also told her that i thought about what she said about something needing to "give" and told her that i didn't want to leave the hospitality industry and obviously i can't just leave my daughter. She then gave me another date that i cannot attend as i have my daughter. i have emailed her back saying that can we not just discuss it tomorrow when she is in in the interim to waiting on the meeting, and can we agree a date together that suits not parties.
I rang ACAS for advice. they mentioned the verbal agreement and about flexible request. i had done this previously as i was never asked. my old manager just agreed something with me and that is what was rostered.
Ive started to look for another job as i don't see how i can stay with the company as they aren't giving me a choice to. i feel like they are pushing me out and i don't understand why. in the meeting with my old manager and new manager he stated to her that he didn't want to lose me and that i did the most nights out of everyone in the restaurant and i fit in well there.
any advice is greatly appreciated
thanks
Submitted: 12 months ago.
Category: Employment Law
Expert:  Ben Jones replied 12 months ago.
Hello, your rights will be somewhat limited due to the length of service you have with this employer. If you have less than 2 years service then you will not be protected against unfair dismissal or constructive dismissal, that latter of which would have been the usual way to deal with such issues. In a constructive dismissal case you can resign due to unfair treatment by the employer and make a claim against them but in the circumstances it would not be possible as you do not have the required length of service. So even if there was a breach of contract by the employer, you cannot challenge it legally as your only way of doing so would have been through the constructive dismissal route. You can of course raise a formal grievance with the employer, an internal complaint basically, but this would be left in the hands of the employer so you will not get an independent decision.The other rights you have are in relation to making a flexible working request. The right to make a flexible working request applies to any employee who has been employed by the employer for at least 26 weeks.Examples of the changes that can be applied for in a flexible working request include:• A change to working hours• Change to working location• Job-sharingWhen a formal request is made, an employer can only reject it 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 workIn 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 the 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 create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged.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. The available grounds to challenge their decision are:• 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 allowed reasons • The rejection was based on incorrect factsThe 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.I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) 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
Expert:  Ben Jones replied 11 months ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.
Expert:  Ben Jones replied 11 months ago.
Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

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