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Constructive dismissal if they change my working hours?(18 Posts)
(I have name changed for this)
I need some advice on possible constructive dismissal. I currently work unusual hours in my industry, 10am until 2pm, 5 days a week. (So 0.6fte) This obviously allows me to care for my small school age children and do the school run, and therefore allow me to work.
I have had these hours for 2 years, ever since I joined the company.
They are now restructuring and stating that all working hours will be reviewed as part of that. They have not explicitly told me they won’t honour my hours yet but my current team is being dissolved and they have said we all need to state preference for a new role in the company. They have also said they will look for flexible working that covers the full day (ie 2/3 day job share spilts)
They have stated I’m not eligible for redundancy as they will give me another role so I won’t be without work.
However if I can’t work these hours, because they can’t honour them, then I will have to resign and leave.
Would I have a case for constructive dismissal? If/when they finally say they can no longer continue my hours?
I have worked these hours successfully for 2 years so their argument that it doesn’t suit the business would be hard to argue right? Though I guess they could claim as my team is being dissolved it doesn’t matter what used to work for that team as they will no longer exist.
I’m all over the place with this right now.
What does your contract say about your working hours?
My contract says something vague like “hours may be changed on reasonable notice following appropriate consultation”
With notice they can amend your hours even if your role continued. Unfortunately your childcare arrangements are not their consideration, they may think that circumstances have changed in the interim. However they should still offer redundancy if the restructure means that your current role no longer exists and there is no reasonable equivalent. Even if you took another role you may have the right to try it out before taking it permanently. After a period you could apply for flexible hours. You could consult ACAS but constructive unfair dismissal is hard to prove.
This was a landmark case when I was a union rep. I would be finding out if it still applied.
I appreciate they don’t care about my childcare arrangements but I have caring responsibilities which they knew about when they employed me, one current hours.
They would argue that there is a reasonable alternative role, ie same grade, same job title, but not the same hours. Does that make it an unreasonable alternative?
Usually these issues are resolved by negotiation. If you are a valued employee, they should try and keep you. I assume your hours are already different to everyone else. Why would your hours not be honoured? However, I think if they offer you the job level and the pay, that’s ok because, as others have said, your caring role isn’t their problem. What you need to do is get one of the jobs and negotiate. Getting rid of good staff never makes sense.
”They would argue that there is a reasonable alternative role, ie same grade, same job title, but not the same hours. Does that make it an unreasonable alternative?”
Yes. Whether a role is a suitable alternative in a redundancy situation doesn’t just depend on job content and pay. Employers must take personal circumstances into account. For example a relocated job may be a suitable alternative for a young single man with no dependents but may not be a suitable alternative for a single mother with children at school.
If your own job is redundant and the alternative isn’t suitable, you will be entitled to refuse it and take redundancy. I would expect them to be able to explain why any new job which is suitable in terms of role and responsibilities cannot be done on your existing hours.
It's a difficult one as it's all come down to reasonableness and what would be deemed reasonable is dependent on many factors. For instance, it could be deemed reasonable for a senior manager to have a much longer commute to what they had before but not for someone with less responsibility.
Working hours fall under the same test. You would need to seek good legal advice. What seems to go in your favour is that you were emoyrd from the start on these hours. At the sane time, if the change was for you to work 9 to 1pm or 11 to 3pm, although an issue for you with childcare, from a business perspective, that could possibly be deemed reasonable.
Constructive dismissal is completely wrong here. As others have said, if your role has been deleted you are redundant, if they offer you a reasonable alternative it is up to you to decide to take or not, if it is not reasonable then redundancy should apply. Ultimately this would be a question for an employment tribunal to decide! Can you really not be more flexible and agree childcare for a couple of days?
I’d be looking at it less from a constructive dismissal angle and more from an indirect sex discrimination angle.
Are there no breakfast or after school clubs that you could use?
Have you considered how you could do the full days they have suggested?
Thank you all, I really appreciate your comments.
I think you are right about the fact that they need to offer redundancy if they can’t honour the hours, that does make more sense and I’m hopeful that could be the outcome for me.
I’m gutted this is happening, it’s such a shame when things have been going so well for the past 2 years. Sadly I can’t be any flexible for various reasons so I need my hours to remain as they are or I have to find another job. But obviously walking away with a pay out would make a big difference.
But they don't have to make you redundant though. If there is a role in the new structure that matches your current role (and by matching, 50% of the role might be enough to consider a match), this could be considered a reasonable offer.
Whether to difference in hours would mean that a judge would consider it unreasonable will be a matter of consideration of a number of factors. Your personal circumstances could or not impact on the decision.
I would have thought it was better to be in the office a few hours every day rather than all day on only some days. There would seem to be some room for negotiation.
But I'd also be looking at wraparound childcare, if it exists. Even if it makes you worse off, it's worth it to keep a job. School hours jobs are incredibly difficult to find.
Does it not also depend on what hours a potential jobsharer might prefer. Iiwy I'd apply for an equivalent role and discuss your limitations on hours at interview. Do review if there is any flexibility in your caring responsibilities beforehand though, it is easy to get into a routine which works but don't dismiss it out of hand.
If they have said you don’t meet the criteria for redundancy then I don’t see you walking away with a payout
I think it sounds like you are going to have to accept the change in hours or resign
If the new hours were at odds to the industry standard, then they would be unreasonable. But you acknowledge that your current hours are at odds with the industry standards, so they are within their rights to being your hours in line with everyone else's.