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I'm not sure if i've done the right thing. Have I stirred it up ? Need someone in HR that might be knowledgable to help.

(10 Posts)
shinyshoes Sun 16-Aug-09 22:26:28

DP reckons I have done the right thing.

Long story I will try and keep it brief.

I have worked at the same company for 7 years. I had a baby 20 months ago and returned to work after AML November last year.

The company I work for paid a premium rate for sundays and Bank Holidays. In march they told everyone that the premium pay was being removed we were given a monetary compensation package and they needed the majority of the workforce to accept this offer otherwise they'd go back for a 90 day consultation. (read into that what you will. ) We all had an idea that the 90 day thing would come back with the removal of premium pay anyway and no monetary compensation package.
The offe rwas a 'one off offer never to be repeated' . people at work signed the offer thinking they are going to remove the premium pay anyway so I might as well get something out of it.
The majority of the workforce (80% I think )accepted the offer. This meant thay took the money and are now working for flat rate on Sundays and Bank Holidays.

I was one of the few that didn't accept the offer leaving me on premium pay still.

I returned to work on a flexi working time agreement I put it in writing done it all properly.

I have to fufill 20 hours a week. My DP works shifts nd I have to work around his shifts as there's no way I'd want to sign up for childcare nurseries etc anyway.

This coming bank holiday I have made myself available to work. As the same for the previous 2 bank holidays. I have been told no way will I be rota'd in and I was to make up my hours from leiu I have stored. She wants the 'cheaper staff'. I have done this the past 2 bank holidays and am not prepared to use more of my leiu for the next bank holiday to make up the shortfall.

Should I have let it be and used up leiu or should I make a stand and tell her I won't be penalised for not taking the offer. I am making myself available to work and she won't let me.

I have to ring her tomorrow for the answer. I told he I thought I was being punished for not accepting the offer and she wasn't being fair.

What shall I do.

StillSquiffy Sun 16-Aug-09 23:24:29

Can I double check the facts? You have to do 20 hours a week and you offer up available times and they then accept the ones that match their needs?

And some hours you get paid standard rate, some hours you get paid premium rate?

And on certain weeks you are offering to do only hours which (mostly) fall in the premium rate category rather than the standard rate category? And because of that, they are saying they will take the standard hours that you offer to do, but not the premium hours you are offering up? which leaves you short of the 20 hours and means you are using up holiday?

If so, then I think that you don't really have a leg to stand on. I would say that it could be seen as unfair of you to only make yourself available during premium rate hours.

If it is the case that each week you offer yourself for rotas that total, say, 30 hours, including at least 20 standard hours and some premium hours, and that they were not filling your 20 hours from the standard pay rotas you had offered to be on, then you might have a justfiyable complaint, but as it is I think they are doing exactly as you would expect them to: they have paid upfront for the ability to call staff in without paying extra, and they are now 'banking' that benefit. I would be surprised if they had done anything different. Forcing you to work bank holidays or Sundays might in certain cases be unfair, but forcing you NOT to almost certainly isn't, unless you have a clear agreement that some of your work WILL fall on such dates.

I should add a health warning to the above in that this isn't one I have come across before in employment law, so I am just going by gut instinct on some of this. It is an odd one. I could be wrong. But TBH I think that in cases like this there should be flexibility on both sides - and where there are bank holidays etc then you should offer them up enough options for them to take your 20 hours out of standard pay times, rather than expect them to pay more to use you when they can use someone else for less.

It is unfair on you because you now lose all possible premium rates. But then your colleagues are now having to do 25% more unsociable hours than before, because of the people who refused the move (and who are now excluded from the weekend work), so they may be 'out of pocket' too.

I would be interested to see what flowery/ribena think about this one...

whingingDailyHateMail Sun 16-Aug-09 23:28:50

Personally, I would refuse to use time I have banked as TOIL, in order to have a day off that I do not want. I don't work flexitime as such, but can build up time in lieu when working an extra hour or two/coming in for a meeting/training etc. I have refused to take TOIL when they needed me to go home for operational reasons - perhaps you could ring ACAS before you speak to her? Or the union if you are in one?

But I'm not sure you can insist on working the bank holiday either. Can you make yourself available for shifts that week that will mean you need to work the BH to get your hours in?

whingingDailyHateMail Sun 16-Aug-09 23:31:07

Oh and I'm not HR obv! But I work round my DH's shifts and do a similar number of hours, use no paid childcare etc - so I know it can be tricky to squeeze it all insmile

shinyshoes Mon 17-Aug-09 00:18:38

Thank you for taking the time to reply [smile}

sorry to quote your post but I can't see another way of answering your question.

Can I double check the facts? You have to do 20 hours a week and you offer up available times and they then accept the ones that match their needs? no I Offer the days I can work they fit me in accordingly

And some hours you get paid standard rate, some hours you get paid premium rate? I get paid Standard rate for my 20 hours anything over 30 I get time and a half any Bank Holidays and sundays (I have opted out of sunday working )I would get double pay.

And on certain weeks you are offering to do only hours which (mostly) fall in the premium rate category rather than the standard rate category? No out of 8 BH this year my DP's shifts have allowed me to work the last 3. I have not wanted to do them all

And because of that, they are saying they will take the standard hours that you offer to do, but not the premium hours you are offering up? which leaves you short of the 20 hours and means you are using up holiday? yes

If so, then I think that you don't really have a leg to stand on. I would say that it could be seen as unfair of you to only make yourself available during premium rate hours.

If it is the case that each week you offer yourself for rotas that total, say, 30 hours, including at least 20 standard hours and some premium hours, and that they were not filling your 20 hours from the standard pay rotas you had offered to be on, then you might have a justfiyable complaint, but as it is I think they are doing exactly as you would expect them to: they have paid upfront for the ability to call staff in without paying extra, and they are now 'banking' that benefit. I would be surprised if they had done anything different. Forcing you to work bank holidays or Sundays might in certain cases be unfair, but forcing you NOT to almost certainly isn't, unless you have a clear agreement that some of your work WILL fall on such dates.

I should add a health warning to the above in that this isn't one I have come across before in employment law, so I am just going by gut instinct on some of this. It is an odd one. I could be wrong. But TBH I think that in cases like this there should be flexibility on both sides - and where there are bank holidays etc then you should offer them up enough options for them to take your 20 hours out of standard pay times, rather than expect them to pay more to use you when they can use someone else for less.

It is unfair on you because you now lose all possible premium rates. But then your colleagues are now having to do 25% more unsociable hours than before, because of the people who refused the move (and who are now excluded from the weekend work), so they may be 'out of pocket' too. but that was their choice surely ?

I would be interested to see what flowery/ribena think about this one...

shinyshoes Mon 17-Aug-09 00:21:21

WhingingDailyHateMail.

I was thinking along the same lines as you. They can't make me take the time I don't want. why me, why don't they make others take leiu or holdays as and when it fits in with the company.

I feel i'm being unfairly penalised beacause I didn't take the offer.

StillSquiffy Mon 17-Aug-09 08:55:41

you are being penalised because you didn't take the offer, yes, but it was your choice not to take the offer. It would be unfair only if you hadn't had the same choice to 'opt in' as the others.

I think TBH it is your responsibility to pick days when you can do standard hours if you don't want to fall 'short' on any particular weeks, and if your DH's shifts mean you can't do that sometimes then I don't think you can expect the company to pay more for you than someone else.

Saying that, I am not completely sure of the legal position here, because the problem you have is the polar opposite of what normally happens - normally people are protected against being forced to do unreasonable/unsociable hours, not the other way round IYSWIM. There have been cases where parents have proven discrim/unfairness if they are constantly and knowingly offered shifts they can't do for family commitment reasons, but this usually applies to public sector staff (such as police force) where there are fixed rotas that can't be combined with childcare and people have sued because they can't do the rotas. Also people have sued where they have fixed routines because of childcare which mean that they suffer because they can never get overtime or other bonuses paid to others (eg dustbin men vs dinner ladies in local authorities), but TBH I don't think you fit into either category because you CAN do the odd hours, but have chosen to opt out of the 'preferred' group. I don't think you have any grounds to claim unfairness but I could be wrong.

If you have a union I would speak to them. TBH I am not sure ACAS or Equality commission or the like will be able to advise: I think it will take a specialist lawyer OR someone with a vested interest in the business/business sector itself (ie Union). But as I said before, my hunch is that you are not being unfairly treated, as this was your choice in first instance.

flowerybeanbag Mon 17-Aug-09 10:58:44

What exactly does your contract or flexible working agreement say about the extent to which you can choose which hours you are available. I would imagine a well-drafted contract or agreement would ensure that the employer has the right to not allow you to work on any given day should they not need you or want you to? Does it say anything about that?

shinyshoes Mon 17-Aug-09 14:21:21

in my contract I am contracted for 19.5 hours over 3 days, One of which would include a saturday. (I haven't done a saturday for around 5 years) that's my original contract.

My flexi working letter/application was explaining that my days would differ week to week based the shifts my DP is working. There would be no set times or set days it would solely be around DP shifts. I haven't had a letter back saying this was un/reasonable it just got filed. This was last August I sent that in, about 3 months before I returned to work after maternity.

My area manager and I discussed this before I went on maternity and this was fine as she was doing it for a couple of other people anyway. It is a case of let us know a week in advance of your shifts and we'll fit you in kind of thing.
I choose my days, hand them to the staffing manager and he fits me in accordingly. I know I have it my own way and they've been more than fair, the more I think about it the more perhaps I am coming across as unreasoable or selfish.

allaboutme Mon 17-Aug-09 14:31:56

I'd say that if you get to choose your days to suit you every single week and that the vast majority of weeks they accept it, then on the odd week when they cant accept your days because it will cost them more, you will just have to accept it.
On the odd occasion when they say no, you cant do the BH shift you should:

offer to do it at normal pay like evryone else
offer to work a different day and get someone other than DH to mind your DCs on that day
or
Take a day off in lieu as they are asking you to do and mind your DCs yourself

You are VERY lucky that they let you work whatever days you choose most of the time tbh considering that you have a contract that states you must work on certain days which are not to your convenience!

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