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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44365
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My husband has just bin told he has to stay on earlys shift

Resolved Question:

My husband has just bin told he has to stay on earlys shift for next 2 weeks while his floor manager is away on holiday. Even tho he works one week of days n one week of afters as do I. I work the oposite to him. We have 2 kids n no childcare this is why we do the shifts we do. His work know this n are being funny with him since he has returned bk from being on club from his gp. Can they just turn around n do this even tho they know I can't change my shifts in short period of notice n they know we have 2 kids to care for? He was recently on night shift but they only gave him a weeks notice when they cancelled this to go back onto days
Submitted: 2 months ago.
Category: Law
Expert:  Ben Jones replied 2 months ago.

Hello how long has he worked there for and what does his contract say about the employers ability to change his shifts?

Customer: replied 2 months ago.
He has worked there for 15yrs n about his shifts he has always worked week of days then weeks of afters but for past nearly year he did them a favour n went on nights. A week or not even a week before he was due bk to work he had a hand delivered letter to say nights had bin cancelled n he had to go bk on to shifts so he rang them and told then he could go back on earlys as I was on afters and now they are saying he has to stay on earlys for next 2 weeks which he can't do
Customer: replied 2 months ago.
I also feel like he is being bullied by the two people at work because he has had time off sick. He was off sick last year because of these 2 for anxiety and depression they have had it in for him ever since. They tried to sack him yesterday but because he wasn't on his final warning they couldn't n now today they are doing this
Expert:  Ben Jones replied 2 months ago.

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.

Whether the employer can change his shifts like that would very much depend on his contract. This is what determines his rights and the employer’s ability to change his working arrangements. If he has a contracted pattern, such as alternating week of earlies and a week of afternoons, and no provisions allowing them to change these, then they cannot do what they have done. However, if the contract allow them to dictate the shifts that he is working or he could be asked to change them from time to time, then they would potentially be able to do this.

In terms of the bullying, that is unfortunately something that happens all too often in the workplace. The Advisory, Conciliation and Arbitration Service (ACAS) defines bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.” Whatever form it takes, it is unwarranted and unwelcome to the individual subjected to it.

Under law, specifically the Health and Safety at Work etc Act 1974, an employer has a duty to ensure the health, safety and welfare of its employees. In addition, they have the implied contractual duty to provide a safe and suitable working environment. That includes preventing, or at least effectively dealing with bullying behaviour occurring in the workplace.

In terms of what the victim of bullying can do to try and deal with such problems, the following steps are recommended:

1. First of all, and if appropriate, the employee should try and resolve the issue informally with the person responsible for the bullying.

2. If the above does not work or is not a viable option, the employee should consider raising a formal grievance with the employer by following the company's grievance policy. This formally brings the bullying issue to the attention of the employer and they will have a duty to investigate and deal with it.

3. If, following a grievance, the employer fails to take any action or the action they take is inappropriate, the employee would need to seriously consider their next steps. Unfortunately, employment law does not allow employees to make a direct claim about bullying. As such, the most common way of claiming for bullying is by resigning first and then submitting a claim for constructive dismissal in an employment tribunal (subject to having at least 2 years' continuous service with the employer). The reason for resigning would be to claim that by failing to act appropriately, the employer has breached the implied terms of mutual trust and confidence and failed to provide a safe working environment and that there was no other option but to resign. However, this step should only be used as a last resort as it can be risky, after all it will result in the employment being terminated.

In general, a victim should try and gather as much evidence as possible before considering making a formal complaint and certainly before going down the resignation route. As bullying often takes verbal form, the best way is to keep a detailed diary of all bullying occasions so that there is at least some reference in written form that the employer and/or the tribunal can refer to.

This is your basic legal position. I have more detailed advice for you in terms of the constructive dismissal option and how he can rely on it here, 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: Law
Satisfied Customers: 44365
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Law Specialists are ready to help you
Expert:  Ben Jones replied 2 months ago.

Thank you. This could potentially amount to constructive dismissal, which occurs when the following two elements are present:

· Serious breach of contract by the employer; and

· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.

If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.

Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.

An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.

Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.

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