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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45322
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I WORK FOR SOUTH WEST NHS AMBULANCE SERVICE AND I HAVE BEEN

Resolved Question:

I WORK FOR SOUTH WEST NHS AMBULANCE SERVICE AND I HAVE BEEN ON ANNUALISED HOURS CONTRACT FOR 5YRS DUE TO WIFE ILLNESS AND DISABILTY.The trust want to change staff rotas and shift patterns and are looking at those on annualised hours as well.Can an employer legally take an employee off flexible working even if this will cause a detriment and result in the employee not being able to continue in employment due to being carer for a spouse ?
Would this be classed as indirect discrimination against those on annualised hrs and flexible working conditions?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. This will not be discrimination because it does not affect a protected characteristic. Discrimination can only occur of someone is treated unfavourably due to a protected characteristic, such as age, gender, race, religion, etc - working annualised or flexible hours in itself is not a protected characteristic.

Instead this needs to be treated as a change to your contract because once a flexible working arrangement has been agreed, it would generally be a permanent change so amending that at a later date would amount to a change of 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.


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.

Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.

Also you can apply for flexible working at any time, as long as you have not done so within the last year, so if the changes may affect your work/life balance, you can now make another formal flexible working application, which needs to be considered by the employer.

Customer:

thanks Ben,Would they not have to fully justify the reason to take staff off flexible working ?

Customer:

thanks Ben,Would they not have to fully justify the reason to take staff off flexible working ?


Customer:

thanks Ben,Would they not have to fully justify the reason to take staff off flexible working ?

What reasons can they give that would be reasonable?

Customer:

Hi Ben,What reasons can they use to stop flexible working and what notice do they need to give to change contracts?

Ben Jones :

No, they do not have to provide justification to remove flexible working, it is just a change to your contract, it can happen at any time but the above rules would apply. As to the reasons they can use to deny a flexi working request, then they have to rely on at least one of these grounds:



  • 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

Customer:

If change of contract is enforced and I take out grievance do I stay on my current contract until grievance is resolved or would I have to work new contract under protest ?Can I make claim to tribunal for detriment whilst still employed ?

Ben Jones :

if the new changes are introduced then you would have to work on the new one under protest whilst the grievance is resolved. You cannot make a claim for detriment because you would either have to resign and claim constructive dismissal or be dismissed and claim unfair dismissal

Customer:

Is it 90 days notice to change contract ?If unsuccessful with grievance what options do I have?

Ben Jones :

no there is no legal period to change a contract, it can happen at any time. If grievance is unsuccessful then really you are only looking at constructive dismissal

Customer:

once change is enforced I would have to accept outcome of grievance and reapply for flexible working if I wanted to stay in employment,is that correct ?

Ben Jones :

yes correct

Customer:

If they have to have to have one of the grounds mentioned above to deny flexible working then during grievance procedure would i be trying to prove that flexible working is not a burden to the trust etc?

Customer:

If they have to have to have one of the grounds mentioned above to deny flexible working then during grievance procedure would i be trying to prove that flexible working is not a burden to the trust etcIf they have to have to have one of the grounds mentioned above to deny flexible working then during grievance procedure would i be trying to prove that flexible working is not a burden to the trust etc

Ben Jones :

the issue is that 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.

Customer:

ok,would we be in better position if the staff on flexible working put in a collective grievance re -change contracts ?

Ben Jones :

yes a collective grievance could often add more weight ads you will not just be seen as a solitary complaint

Customer:

My logic would say that if they deny all staff who need to stay on flexible conditions then this would not look good and our grievance would have better chance of success ,would you suggest a collective grievance if others loose their flexible conditions ?

Ben Jones :

yes as suggested a collective grievance could add more weight to this argumenty

Customer:

ok ,one final question ,in your professional opinion what chance do you think I have with my case being successful if I have to take out grievance ?

Ben Jones :

no one can predict that because as mentioned it is down to the employer now to show that the reasons listed apply, sop this would depend on the particular circumstances, it is no longer about a legal opinion, rather than a factual matter which would vary from case to case based on the actual circumstances

Customer:

thanks for help

Ben Jones :

you are most welcome

Customer:

hi,ben,trying to rate service for you but says not finished answering

Ben Jones :

Apologies for that, there is a bug in the system which we sometimes get and it prevents you from posting your rating. Instead, you can just type your selection on here (e.g. OK, Good, Excellent) then we will process it manually later. Thank you

Customer:

rate as good

Customer:

hope that's ok

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45322
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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