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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47354
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I currently work in a nursery as a nursery assistant

Customer Question

I currently work in a nursery as a nursery assistant for 4 years. I work during term time only as the nursery has only been opened during term time. I took the job as I am the primary carer for my 2 children 1 one of whom is disabled.
I did not sign a contract when I started, I have asked to see it several times, but so far they are refusing to supply me with one.
The reason I am writing is that my employers have decided to open all year round and without consultation have decided that now we will have to work all year round, they are unwilling to negotiate and are simply saying that if we do not agree we will be given notice. The new terms mean I will not be able to do my job as I cannot afford childcare for two children and have no other means. There are several of us in this position and we have tried to raise the issue but the employer does not care.
Can my employer do this change terms without consultation and the n threaten to let us go if we can not possibly work like this?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Have you always worked only term time with them?
Customer: replied 1 year ago.
yes I have always worked during term time
Expert:  Ben Jones replied 1 year ago.
Whilst you may not have a written contract in place, you can certainly try and argue that the current working pattern is an implied contractual term through ‘custom and practice’. This means it has become a contractual arrangement because it has been consistently applied throughout your time with them and over a length of time. Therefore, if the employer now tries and change that it would amount to a change to your contract. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:· Receiving the employee’s express consent to the changes.· Forcefully introducing the changes (called 'unilateral change of contract').· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms. You have ways of challenging these changes although none would guarantee you remain there on your existing pattern. This is your basic legal position. I have more detailed advice for you in terms of the legal rights you have to challenge this, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Thank you. If the changes are introduced without the employee's consent, then the following options are available: 1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance. 2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions. 3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply. When considering any of the claims after termination, you have to be mindful that there are circumstances where an employer could try and justify these changes, for example if the whole business changed and for it to operate the staff had to have their working times amended and there was no other way around this. But it has to be seen as a reasonable request by them.
Customer: replied 1 year ago.
They are saying they need to be in line with other nurseries to remain competitive, the issue is that all of the mothers with young children will no longer be able to do this.
Customer: replied 1 year ago.
Numbers have remained steady, there has no been no decline. Would this be seen as reasonable
Expert:  Ben Jones replied 1 year ago.
If it is as a result of having to remain competitive then it could be seen as reasonable but they still need to go through a formal process including consultation
Customer: replied 1 year ago.
Can the consultation just encompass a fifteen minute meeting whereby we are told this is what is happening? And that they are pressing ahead regardless of the impact on employees with children. Effectively we, the mothers, feel we are being discriminated against as this disproportionately will impact us as a group. While we understand that other mothers in other jobs have to find solutions to issues like this, I simply do not have the resources to do so, plus all the mothers with young children will be asking for exactly the same time off, which would be impossible.
Expert:  Ben Jones replied 1 year ago.
This is not consultation really this is confirmation of the changes. Consultation has to be meaningful, it is a two way process where you are told about the proposed changes and perhaps discuss alternatives before they are eventually introduced.

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