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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46173
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been working as front of house in a restaurant for 6

Customer Question

I have been working as front of house in a restaurant for 6 years with the past 3 years working only evening shifts. I now have a 1 yr old child and the owner has closed the restaurant at night only opening at lunchtimes. He did offer to keep me on but I cannot do the day shifts owing to being unable to get childcare (in the evenings my husband looked after our son).
My employer feels he has done his duty by continuing my employment albeit changing my shift pattern. So, I have not been offered any redundancy payment etc. I’ve read that women can refuse changes in shift patterns on the grounds of childcare issues, with the employer having to adopt the redundancy route.
Please advise
Submitted: 6 months ago.
Category: Employment Law
Expert:  Ben Jones replied 6 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 6 months ago.

Has your employer now recruited a new staff member for the new lunchtime position?

Customer: replied 6 months ago.
No, he has moved the staff from evening to lunchtime
Expert:  Ben Jones replied 6 months ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 6 months ago.

Many thanks for your patience. The key here is what tour contract says about your working hours. For example if you did not have contractually defined hours of work but could be asked to do whatever hours the business requires you would find it difficult to argue that this amounts to a contractual change which has placed you at a disadvantage because legally the contract is not being changed – you are simply being asked to work different hours as allowed under contract. If however you were specifically contracted to work evening hours and they are now trying to change your contract to make you work lunchtimes only, then that would amount to a change to your terms and conditions.

If you cannot comply with these changes due to childcare responsibilities then you may have a claim for indirect sex discrimination. Saying that, if your employer can show there is a sound business reason for the change and that their actions are a proportionate means of achieving a legitimate aim then your claim would not be successful. The employer would basically have to show that there was a genuine business reason for the change (this will be satisfied here as the restaurant is simply closed in the evenings, it is not like they are still keeping it open then an not allowing you to do evening shifts); and that it was necessary to change your particular way of working, taking into account the effect on you personally, of the proposed change. That is unlikely to be that relevant because there would have been no other way to keep you working in the evenings – unless they had other evening jobs which you could have considered, it is unlikely much could have been done to keep you in an evening job so the employer is likely to be able to defend a discrimination claim in the circumstances.

In terms of redundancy this would only really be relevant if you were specifically contracted to work evening shifts. If your contract allowed the employer to dictate your working hours and change them as the business needs dictate, redundancy would be less likely.

This is your basic legal position. I have more detailed advice for you in terms of the options you have to take this further if needed, 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46173
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 6 months ago.
I read somewhere that if your shift roata was static over 2 years then that would be regarded as your contracted hours/shift pattern. In my case I have been working solely evening shifts for 3 years?
Expert:  Ben Jones replied 6 months ago.

this is known as custom and practice but there is certainly no specified period for which it must be in place for it to turn into a contracted term. It could be months, it could be years - it is not just as simple as saying it has been in place for a defined length of time - there are many other factors that are relevant.

Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:

· 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

· Whether the terms are always the same - large differences will make the argument they had become implied weaker

· 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 term or practice you are relying on has been 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.

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