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Hi, I applied for flexible working at my place of work due to child care which was acce

Hi, I applied for flexible working...
Hi,

I applied for flexible working at my place of work due to child care which was accepted. I was given a rota which I have been on for the past 9yrs. They are now saying that I have to start to work nights and a 24hr shift at a supported house. I have explained that I am unable to do a 24hr shift and nights make me ill.
I have said I could do the 1st part of a 24hr shift but due to child care am unable to do the full. In 2008 I received a contract that states they can change it with 3 months notice. I spoke to the then manager and said I didn't want to sign it for that reason but she said I had nothing to worry about the agreement would stand but now they are wanting to change it.
I have copies of all the letters I sent and received from them along with the rota they issued, how ever my employers say none of these are in my file. Is there anything I can do as I will have to leave due to the 24hr shifts ?

Thank you

Vicky
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Answered in 2 minutes by:
6/23/2014
Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 49,087
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

How long have you worked there for?

Customer:

Hi, I have worked there since 1997 although left briefly and began working again in 2002 I think it was. The contract before I was pregnant was rotational until I applied for the flexible working

Customer:

Hello ?

Ben Jones :

OK, thank you, ***** ***** this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Customer:

thank you

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.


 


What is happening here is that the employer is trying to change your permanent contract which was agreed following your request for flexible working several years ago.


 


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.


 


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

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Customer:

Hi, it looks like I am probably stuck in terms of having to work 24 hour shifts despite telling them I couldn't afford the child care. I don't think I have a leg to stand on. Thanks

Ben Jones :

well not quite, you still have the right to challenge htis, as mentioned it is not as easy as telling you that you are changing and then implementing the changes, you can fight this it is then a matter of considering your options if the grievance does not help

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 49,087
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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