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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47418
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I've worked nights shifts at an nhs hospital years 22.00-08.00am

Customer Question

I've worked nights shifts at an nhs hospital for 13 years 22.00-08.00am five nights on and five nights off so that i can care for my 85 year old father that has type 1 diabetes and failed knee ops that restrict his mobility. my sister works for the same trust but does alternative shifts so we can care for my father 24/7. we are not registered carers, we simply care for our father because we care! Now a new manager has started in our department and wants me to join the 24 hr shift rota meaning both my sister and i will be at work at the same time leaving my father totally alone and unaided. I was taken on as permenent nightshift worker but it does not state this in my basic contract. When i discused this with my manager she said someone else might want to do my nights, and she expects us to do five nights monday through to saturday morning and return to work that monday morning for a dayshift. after doing five night shifts and then five days off for the last 13 years, i know its physically impossible to recover after 40 hrs rest break and my fathers welfare will suffer immensely. Please could you advise me on this matter. Thanking you.
Rosaleen
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Does your contract state that your contract can be changed in this way?
Customer: replied 2 years ago.

Hello Ben, my contract is so basic just rate of hours and duties as per local agreement and in accordance with the needs of the service is what it states.

Regards,

Rosaleen

Expert:  Ben Jones replied 2 years ago.
Hello Rosaleen, sorry I was offline by the time you had replied. You could claim that having worked permanent nights for 13 years, this has become an implied contractual term through custom and practice. In effect, this means that your contract is for night shifts, even if it is not written down anywhere.
Therefore, changing this now would potentially amount to an amendment 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.
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.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

Thank you Ben for your promissing advise, much appreciated. I know now what line to follow and will draw up a letter of protest if an informal discussion does not amount to any good. Is this something you can help me with? should I have it ready by our meeting on monday if things do not go my way and I have to commence with day shifts under protest.

Kind regards,

Rosaleen

Expert:  Ben Jones replied 2 years ago.
I should be able to do this If you could please leave your rating for the advice so far then I will get something to you no later than tomorrow morning. Thank you
Ben Jones and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you Ben, look forward to your responce.

king regards,

Rosaleen

Expert:  Ben Jones replied 2 years ago.
Thanks will respond as soon as I can
Expert:  Ben Jones replied 2 years ago.
Thanks for your patience. You can have a letter ready along these lines:
“Dear [line manager’s name]
I hereby inform you that I do not accept the proposed variation to my contract to join the 24 hour shift rota. I am employed as to work night shifts and request to retain my status as a night shift worker.
By continuing to work under the new terms I am in no way accepting them and am working under protest until an amicable resolution is achieved.
Regards
[your name]”
Customer: replied 2 years ago.

Dear Ben,

Thank you for your draft letter you have help me immensely. I may have to get back to you, you have been a big help and I am sure I will need your assistance again.

Many thanks

Rosaleen

Expert:  Ben Jones replied 2 years ago.
You are welcome, all the best for now