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Ex-P, his employer and access.

(24 Posts)
CardyMow Sat 08-Oct-11 18:48:00

I have copied this from where I originally posted it in Legal issues. I have been advised that I might get more targetted advice here.

Ex-P has worked in the same job for 4 years. His employer (Carrillion) lost the contract, so his boss is now the NHS.

He has been on the same, fortnightly rota the whole time he has worked there - Mon 1 late, Tue 1 early, Wed 1 late, Thur 1 OFF, Fri 1 OFF, Sat 1 early, Sun 1 early, Mon 2 early, Tue 2 early, Wed 2 late, Thur 2 early, Fri 2 early, Sat 2 OFF, Sun 2 OFF.

This enabled us to SET an access pattern where Ex-P would come round to see the dc's after work on a Tuesday and a Thursday (allowing me to plan my life around this, so I could arrange in advance to spend time with MY friends etc, or go out for a meal with the dc's on a Wednesday). Ex-P then had overnight with DS2 on Sat2 and brought him back on Sun2.

NOW that his employer has changed - they have decided NOT to have set shift patterns, and only release the rota for the following week on a Friday (so shifts for Monday set on Fri). If Ex-P isn't WORKING Friday, he can't tell me until Saturday. Which means that I can't ever arrange MY life because of not knowing what my EX-P will be working. NOT GOING TO HAPPEN - If I have arranged to be out on a Wed, and Ex-P can't come on Tue or Thurs - tough, I'm allowed a life too!! OH - and they are saying that he can only have ONE weekend off a month instead of every other weekend. But that's when he has DS2 overnight at MIL's - he can't do that on a school day due to distance and lack of buses (his mum, my MIL is very rural, we are in the 'closest' town).

However, when he complained to his boss that he can't do access at such short notice, has offered shift pattern flexibility when he can, just asked to be kept on early shift on Tue and Thur and to keep his set weekend off - he got told "Business comes first, your family will have to suck it up". But I'm BLOODY NOT his family any more - and while I want him to keep in contact with the dc, I'm NOT prepared to drop everything in MY life to do that.

I am giving reasonable access, with set days (which is VERY important to ME).

What I am asking is if his employer can do this? Can they change a shift pattern that effectively either forces me to not have any life because of my EX partners work shifts, or for my Ex-P to hardly ever see his dc? Surely they have to allow flexible working when all he is asking is to have his weekend off every fortnight (that access IS court ordered, with supporting paperwork), and to be on an early shift on a Tue and Thur (which isn't court ordered, is done 'amicably'). He's not saying he WON'T work Tue or Thur, just that he needs to be on an early (his late shift finishes at 10pm, too late to see his dc).

twinklytoes Sat 08-Oct-11 21:35:49

was he tupe'd between companies? don't know much but I think that through TUPE terms and conditions remain the same for a period of time, same as policies etc. maybe worth checking.

he probably needs to apply for a formal flexible working agreement rather than just a conversation with his employer. if he finds the relevant policy (all ours are on our nhs trust website for all to see, so you could look for it) and they'll be a form to complete.

three days notice of your working pattern is ridiculous and not acceptable. I guess that's a formal grievance. maybe there's a policy somewhere that details what is acceptable for publishing rosters. Ours is six weeks published at all times.

rolling rosters can be difficult to adopt if it's not the norm, hence why they may be going to setting rosters as they are.

CardyMow Sat 08-Oct-11 21:48:04

What's TUPE? It vaguely rings a bell, but you have to bear in mind this is my EX partner - he left over 4 months ago, when he was still with his original employer.

He is also not, erm, very...capable when it comes to finding things out online - he has SN. But I don't feel it is MY place anymore to be his Mummy and find things out for HIM - I'm more concerned with any possible effects on ME

So I can tell him that the lack of Notice from his employers of the weekly Rota's is not acceptable, then? Thing is, the rolling rosters have been the norm there for at least the 4 years Ex-P has worked there - why do the NHS need to change it?

I THINK if I'm right, he said something about TUPE in June - I think that period was over at the start of October, hence things suddenly changing?

Grevling Sat 08-Oct-11 22:35:06

TUPE is transfer of employment protection of employment. It basically protects your terms and conditions on transfer, there is nothing to stop the new employer trying to change them though once the transfer is complete. They can't use the transfer as a reason to change anything but they can argue the business as a whole has changed so they must make changes unconnected with the transfer.

What I think is happening is that he'll have been given notice that his shifts are changing due to business need. He will have two options. Take it or take redundancy though due to offering a suitable job there won't be any pay off.

Either that or he will have a contract that states he can be flexible to the needs of the business. In short he could try and argue it stating custom and practice but he's probably on a hiding to nothing especially if he's the only one that kicks off.

I'm afraid it looks like your both going to have to change the way you do things, the court orders won't help. They're to say you have to let him see the children not that his employers have to give him the time off.

Does he have parental responsibility for the child? Look here: www.direct.gov.uk/en/Parents/ParentsRights/DG_4002954 If so he can request flexible working to give him set hours (or his old hours) - its a request doesn't mean it will happen. If he doesn't have parental responsibility he can't claim flex working.

This is probably his best option.

Oh an one final request. Can you stop the whole capitalisation of one work in a sentence thing. It's REALLY annoying.

Grevling Sat 08-Oct-11 22:35:37

bah, that should read "transfer of undertakings protection of employment".

TheDetective Sat 08-Oct-11 23:01:30

Welcome to my world. Both me and Ex partner work shifts, I sometimes get 5 days notice for the following 4 week rota. He gets his shifts on a friday/saturday for the following week ahead.

It fucks me off, but there is nothing I can do about it. He tells me when he can have my son, I invariably end up not seeing him on my day off, as he always has a bloody day off when I am. I would rather he has him when I am on a late. But this is life... and its tough.

I don't think there is much your ex partner can do tbh, I work for the NHS too... need I say more? He is lucky to have a job in this climate tbh... I think you are just going to have to suck this one up.

Many other families have to juggle these things.

CardyMow Sat 08-Oct-11 23:19:14

Sorry Grevling. <<Sits on hands so I don't press Caps Lock>>.

I'm NOT going to suck this up - I want to arm Ex-P with what he needs to sort this out at his end.

Ex-P does have PR for both DS2 and DS3.

I am not prepared to never plan anything in my life. DS2 has asd and needs routine, and to be able to know what days he will see his dad.

And I am not willing to put the power over my own life back into Ex-P's hands, when that is a huge part of why we are no longer together. He was emotionally abusive, used to tell me I was mad for thinking whatever I thought, that as he went to work he didn't have to do anything in the house, that I wasn't allowed to go and see my friends and more.

The thing is, I can see that my Ex-P would use the flexibility to his advantage - he would wait to find out that I had arranged to go round my friends' house, and then he would tell me that that was the only possible day he could see the dc. While using his other day off to go out. He is allowed a life but not me. Hence me needing to have boundaries and set days. Before I did that, he was trying to drop round every night after work, and if I was out at a friends', he would ring me and scream and shout that I was 'blocking access' even if it wasn't a set access day.

So I am not prepared to be flexible - the arrangement is Tue and Thur afternoon from when he finishes work till the dc go to bed every week, and ever other weekend for DS2. I would be willing to do a different two weekdays - but only if they are the same every week.

Where does Ex-P stand wrt to his employer if I insist on set access days?

CardyMow Sat 08-Oct-11 23:20:16

But I'm not his 'family' any more - we are ex partners. Why should I have to suck it up?

LoveBeingAMummyAgain Sun 09-Oct-11 05:54:59

You have my sympathy cause if that's the way the business works now he will need to do as you've been advised and request his old hours. I've had to give staff notice that their hours were changing from a set day tine shift to rotational shifts covering 8am-9pm, I wasn't very popular. That said those with children didn't even have to put it in writing re retaining shifts cause my boss knew HR who agree it anyway.

pallymama Sun 09-Oct-11 06:09:49

I'm in the NHS, under threat of redundancy at the momment. We're also having a big shake up, roles and hours changing and so on. They have to offer suitable alternative employment with regards to the employee, to be able to get out of paying redundancy. I was worried that they'd offer hours I couldn't do due to tight child care arrangements, but the HR advisor told me if they dismissed me on those grounds, and refused to pay redundancy, it would be classed as discrimination.

philmassive Sun 09-Oct-11 06:23:20

He might not be your family but he is your dc's so you can't wriggle out of describing him as family IMO.

If it helps with perspective, and I'm thinking it probably won't, my dh is supposed to get regular days off ie 2 a week. I have organised my working life around this. Guess what? It rarely happens. Unfortunately 'business needs' come first if we want to keep a roof over our heads sad I hate it as much as you do. Dh rarely sees the kids as he is never off on weekends and his (usually only 1) day off I am in work. It is crap.

My point is that if you want your dc to see their dad and have a relationship with him YOU are going to have to make some sacrifices too. It's life, it's crap but from bitter experience I have learned not to be fighting it all the time as it makes me sad, tired and bitter. Sometimes 'sucking it up' is the best option for your sanity. sad

hairylights Sun 09-Oct-11 08:49:38

You're being very selfish.

I don't fought this is a massive pita but the most important thing is your children relationship with their father. You are going to have to become a lot less rigid and a lot more flexible.

I don't think any court in the land would be sympathetic to you blocking access on the basis of your ex's shift patterns being awkward.

CardyMow Sun 09-Oct-11 09:59:04

If trying to stop my Ex-P from controlling MY life even though we are apart is selfish - then yeah, maybe I am. But when you have just started getting your life back together after being in a relationship with someone that even dictated what time of day you could WASH - then maybe, just maybe, you need set access days to keep yourself sane and your Ex-P at arms length...

prh47bridge Sun 09-Oct-11 11:06:53

But this is not him choosing shift patterns to control your life. It is his employer imposing shift patterns. And I agree with hairylights that the courts will not look favourably on you blocking contact because his shift patterns are awkward.

Try looking at it from his point of view. His employer has imposed a new shift pattern. He has asked for the pattern to be changed to fit in with the current contact arrangements. His employer has refused. You appear to be saying that you will not co-operate by being flexible. Neither you nor he can force his current employer to agree to flexible working. So you are, in effect, telling your ex that he must change his job in order to continue the current level of contact with his children. Don't you think that is a little bit controlling?

I understand where you are coming from but I think you are going to have to accept this. If you don't I expect you will end up with a judge telling you that you must accept this. You cannot dictate where your ex works, who he works for or how his employer behaves. If he had chosen to take on a job or shift pattern that would make contact difficult it might be different but everything you have posted says that this is not his choice.

Having said all of that, as I said in the thread on legal your ex should speak to HR if he has not done so already. But if they continue to say no he is pretty much out of options.

flowery Sun 09-Oct-11 14:10:45

You are coming across as extremely me, me ME, rather than what's best for the children. It doesn't sound as though your ex is choosing to change his shift pattern to this at all, or control your life, and even if you don't consider him as family anymore, he's your DC's family like it or not.

His employer is not obliged to make changes to their shift arrangements based on your preferences, and the reason you should suck it up rather than denying access if it's not completely on your terms is because that's what's best for your DC.

Your ex can put in a flexible working request formally requesting set shifts, if he hasn't done that already. You say he's asked, but there's a difference between asking informally and put it in a formal written request. But ultimately he can't force them to agree, and his ex being inflexible isn't much of a reason for them to agree tbh. As long as he's tried a formal request you really shouldn't hold it against him imo. It's just one of those annoying things.

CardyMow Sun 09-Oct-11 14:55:28

But then how much flexibility SHOULD I have? If I have arranged to go round one of my friends for tea on Wednesday, and that has been arranged for 4 WEEKS (I arrange everything 4 weeks ahead - not a spontaneuous person, otherwise DS2 has meltdowns). And then Ex-P phones me on Saturday morning and says that Wednesday is his only day off that week - am I meant to totally cancel my plans? Thus letting down my friends, and my dc?

Or is it OK in that case to say, no, I'm sorry, I have other plans? Or am I not allowed to have any plans? Am I meant to stay in every day, just in case it is the only time Ex-P can get off work?

I actually don't know what is the right thing there? Also, My older DS, DS1 has VERY defined contact with his dad (different dad), and I would like to have all 4 of my dc together with just me sometimes - hence another reason for wanting set contact.

I don't know HOW to explain how Ex-P would twist flexible contact into me never being able to spend time with my friends or arrange anything for myself - but he WILL - he did it last time when I WAS flexible. Which is why me being flexible just won't work, he would expect to stay until midnight too if there wasn't defined contact days and times - I'll never be able to have a life.

CardyMow Sun 09-Oct-11 14:58:34

Even my old solicitor told me I couldn't be flexible with him, as he was trying to control my life - he got sacked by 6 solicitors firms for refusing to listen to them and being irrational and ignoring their advice.

But I can't go back to my old solicitor as she no longer takes legal aid, and I can't use any of the other firms in my town - as they have represented Ex-P in the past, they have told me it would be a 'conflict of interest' so if we went back to court, I would have to self-represent.

flowery Sun 09-Oct-11 15:30:11

No one will be able to tell you what you are 'meant' to do, because there's no such thing, that's for you to work out with your ex, or with the courts if necessary. I'm advising on what your ex's employer's obligations are, which are to consider a request for flexible working but not to agree if they have business reasons to refuse. Has he done that yet or not? If not, that's his first step if he wants set hours.

Outside that, how contact works is between you and your ex and it's not for his employer to worry about or to tell you what you are 'meant' to do about.

And personally, yes I think if your ex can only get one day off and you refuse contact because you've arranged to go to a friend's for tea, that doesn't sound either a) his fault or b) particularly reasonable on your part. It would seem like you being obstructive to make a point tbh, which if it's not his choice which days he has off, would be unfair on him.

CardyMow Sun 09-Oct-11 15:34:01

But if he has two days off in a week, and claims that the one that I have got a prior arrangement is the only one HE can come on (because HE is busy on the other one, i.e. not changing HIS plans...), is that then still up to me to poke up with?

That's what he used to do - say he had Wed and Fri off, he would arrange to go out on Fri, then tell me he HAD to come on Wednesday even if I already had plans - because MY plans aren't as important as his.

CardyMow Sun 09-Oct-11 15:35:02

And YES - he has said that before, many many times - what I want is of no matter to him - what HE wants is all that matters, and I have to do what HE wants...

flowery Sun 09-Oct-11 15:39:32

Well in that case that's nothing at all to do with his employer or his shift patterns and is for you and him to work out between you.

CardyMow Sun 09-Oct-11 15:51:26

But how can I sort it out? When he had set shifts, I could set days and minimise his control over my life. His employer has taken that away from me, and Ex-P is going to use that to stop me from living MY life. sad

flowery Sun 09-Oct-11 17:38:52

I've no idea how you can sort it out I'm afraid. The point is if he uses this situation to behave unreasonably and disrupt your life unnecessarily, it's nothing to do with his employer at all. If and when he tries to restrict you by refusing contact on a day where he is not working or similar, you will need to take whatever action appropriate at the time which I imagine will involve a solicitor.

ljny Sun 09-Oct-11 18:00:42

His employer has taken the predictability away,as you say, but why does that give him not you control over the situation? One possible solution - when he gets the next week shift pattern (did you say Fridays?) he emails or texts you, and you choose his access days for that next week? (rather than him deciding which are convenient for him) Given the parameters, might a court - possibly with mediation - accept this? You could finetune it - obliging you to choose, for example, a minimum of one day a week, a certain percentage of 2-day weeks, or whatever. Would this work?

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