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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49804
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been employed 5 weeks and agreed to work 7 - 3.30 Mon

Customer Question

I have been employed 5 weeks and agreed to work 7 - 3.30 Mon to Fri(40 hrs a week). I have signed a contract. The service manger has now told me the manger who employed me did not have the authority to offer this. I have a disabled daughter and a minor health problem which I explained at interview and these hours and shift pattern were agreed).
The service manager has told me he wants me to change to 12 hour shifts (3 shifts a week or he may consider 4 shifts) and work week ends. This will worsen my health problem doing long days and cause problems caring for my daughter.
Can he do this? he has he has told me if I do not agree, I may not be offered a permanent contract when probation ends?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. How serious is the health problem, does it affect your normal daily activities?

I am just travelling at the moment so may not be able to respond immediately but will do so ASAP this evening, thanks

JACUSTOMER-i384jixw- :

I have micro-vascular angina and ectopic heart beat which can cause chest pains if tired, plus I can get migraines if I get over tired so I have to 'pace' myself. Working more than 8 hours can make me very tired.

Ben Jones :

Many thanks for your patience. Your rights will largely depend on whether you can be classified as being disabled in law. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition;
  • Substantial effect – the effect must be more than minor or trivial;
  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:

  • making adjustments to work premises;
  • allocating some of the employee’s duties to others;
  • transferring the employee to fill an existing suitable vacancy;
  • altering the employee’s hours of work;
  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

So first of all you can argue that the hours you were offered amounted to a binding contract and then if you can show that you satisfy the definition of a disability, you can argue that even if they cannot honour the contract as it was offered, they should still make their best attempts to make reasonable adjustments to accommodate your needs. That could still mean they offer you hours which suit your medical condition and the requirements surrounding it, otherwise you could accuse them of potential disability discrimination.

Hope this clarifies your position? If you could please let me know that would be great, thank you

JACUSTOMER-i384jixw- :

My health issue does not affect me to that extent, my disabled daughter impacts more.

JACUSTOMER-i384jixw- :

I found the job with an agency and was invited to interview with the employer knowing I would work 8 hours a day, Mon to Fri, 40 hours a week. How can they change hours 5 weeks after starting work? If I accept 3 days I will loose money as hours will be reduced to 33 hours a week and if I accept 4 days, I will be working 48 hours a week, this is too much. Can they legally do this? I feel I have no option but to leave and find a 40 hour a week job that does 8 hours a day, as I need to care for my daughter in the evenings and weekends. My employer knew this at interview and the agency told them before I went for the interview.

Ben Jones :

I am afraid they can change the hours and if you do not like that then you only have two options - one is to resign because the job is no longer what you had agreed to do, the other is to refuse to accept the changes but that could result in the employer terminating your employment. Sadly, as mentioned, due to your short length of service you will not be able to pursue the matter further in either case. As you are not disabled you will not get any additional protection in this respect. So you would either have to try and negotiate with them and hope that they will stick to what was agreed at the beginning, or you would have to leave or eventually be dismissed by the employer if they do not accept your refusal to work these new hours.

I'm sorry if this is not necessarily the answer you wanted to hear but I hope you understand I have a duty to be honest and explain the law as it actually stands and sometimes this does unfortunately mean delivering bad news. Please let me know if you need me to clarify anything?

JACUSTOMER-i384jixw- :

I though carers had rights and that hours can agreed. If an employer agrees to the hours, can they change them at will? is it that I have no rights being a new employee?

Ben Jones :

carers have as many rights as other employees so this will not affect your rights or give you any additional protection. The main issue here is your length of service because your legal rights will be limited in the first 2 years of employment as described above. So even if the hours were initially agreed when you started the job, the employer could still force the changes through and you will then only be able to challenge this with an internal grievance and if that does not work - then you would either have to accept the new position or resign but without being able to take the matter further as you simply do not have the minimum requirements to do so

Hope this has clarified your position?