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Legal advice needed - suspect trying to force resignation

(16 Posts)
stillfrazzled Wed 09-Sep-09 09:39:28

My friend is a single parent with a 16-year-old daughter. Four years ago she took a demotion at her place of work (local media) to enable her to work family-friendly hours. This was agreed verbally and in writing.

Manager now says ?Because 2 people have left I can't make rota work. I want you to join the same rota as the rest.?

She says she can?t work those hours, as would leave her DD alone in the evenings until well after 9pm.

She has been as flexible as she can WRT Sunday shifts, one weekly late shift, swapping shifts with colleagues when they have trouble etc.

An HR bod has told her that her hours are contractual due to custom and practice and that the changes being sought were "unreasonable" because of the DD.

Boss claims "all he needed to do was give me one week's notice for every year I had worked for the company to change my contract." HR disputes this; says in fact it is a consultation period and she still needs to agree the changes.

Friend has said that if the changes are enforced she will involve the union at local level, then, if necessary, at national level and possibly resign, but go for constructive unfair dismissal.

There is always plenty of work for her to do when she comes in early. ?Two people have left and I can?t make the rota work? is not a business need, it is a temporary inconvenience, surely?

Ironically, no progress has been made since Thursday because boss doesn?t work Fridays due to childcare arrangements!

There are several people in the office who have special arrangements over their hours due to parenting issues, but my friend is the only one who has been asked to change them. As she has repeatedly said she will have to leave the job if these hours are imposed, she is very worried that this is a way of forcing her resignation.

flowerybeanbag Wed 09-Sep-09 09:51:55

What do her original contract and the letter confirming the change four years ago say about the employer's right to change hours, or her obligation to be flexible. Anything?

The boss is wrong about what he thinks he needs to do to change terms and conditions, but that doesn't necessarily mean there isn't a business reason for making the change.

I don't see that 'custom and practice' are relevant really; you say the existing terms and conditions have been confirmed in writing anyway. Custom and practice applies where something isn't necessarily written into a contract (or contract amendment letter), but has been going on for so long it becomes part of established terms and conditions.

See here about what hoops must be jumped through to change terms and conditions, and here about what happens if she doesn't agree.

Also here about constructive dismissal.

I would advise her to write formally to her boss, stating that having taken advice, she understands he does not have the right to amend her terms and conditions without her consent, and she is confirming in this letter that she does not give consent to this change. She will view any attempt to force her to accept this change as constructive dismissal.

Then see what happens. He may try to force it, or as you will see from the above link, he may dismiss her and re-engage her on the new terms and conditions, claiming there is a valid business reason for needing the change to be made. I've no idea from what you've said whether there is or not.

NoGoodNicknamesLeft Wed 09-Sep-09 09:51:57

ooh yes, sounds like constructive dismissal. get a lawyer in - union should help with that.

stillfrazzled Wed 09-Sep-09 10:27:57

Thank you both. I showed this to my friend, and she has given me a bit more detail - don't know if it helps?:

There is a clause in her contract about being flexible (which is why she has pointed out how flexible she has been). And a bit in the contract about working whatever hours the company wants, but she has been advised that doesn't really cover changing from 9am to 4.30pm to noon to 8pm (min) unless they can prove business need.

Nothing has been said at present which she understands as representing business need.

flowerybeanbag Wed 09-Sep-09 10:48:11

Obviously without more knowledge it's impossible to comment on to what extent there is business need for the change. Does she have an alternative that she could propose? I'm just thinking if it comes to an argument about business need later, it would be useful for her to be able to demonstrate why the change is not necessary, what else could be done instead.

I think she should write as I've said, but also start thinking about what else her boss could do that would mean the change isn't necessary.

stillfrazzled Wed 09-Sep-09 10:53:06

Of course, I know it's difficult on such little info. I will pass this on to her and see what she says.

They are recruiting to replace the 2 people that left, but are having trouble. I do wonder whether they want to offer more attractive hours (by screwing over my friend).

Thank you again. Will update if anything happens!

MrsSchadenfreude Wed 09-Sep-09 19:38:24

I don't see why your friend can't leave her DD alone in the evening - she's sixteen. She could be married or living on her own at that age. Unless the child has special needs?

stillfrazzled Wed 09-Sep-09 20:14:43

She doesn't, but my friend doesn't feel that only seeing her daughter at weekends - esp while she's still at school - is the best way to support her.

Her call, and at that moment she can do that and that's what she signed up for this job to do.

MrsSchadenfreude Wed 09-Sep-09 20:35:01

That's fair enough, if true, but from what you have said, she's not being asked to work late every night. How many late nights does she do in a week/month, and just how late are they?

stillfrazzled Thu 10-Sep-09 08:51:56

If you see my second post, it's every night, till at least 8pm - and at this place, an hour's (unpaid) overtime is more or less inevitable.

And why wouldn't it be true?

GrinnyPig Thu 10-Sep-09 09:18:23

I can't give any legal opinion on this, flowery is the one to listen to on that.

My thoughts on reading the original post is that your friends boss probably thinks as MrsS does that she can leave her DD alone now that she is 16. Of course, that's true, but as the mother of a 15, soon to be 16 DD I would hate to be out most evenings and not see my DD after school.

AnitaBlake Thu 10-Sep-09 10:24:55

Is there a trust issue here with her daughter? When I was fourteen I was looking after 8yo and 4yo siblings most evening so my single parent mother could go out to work and put food on the table for us. And I got a glowing set of of GCSEs to show for it too.

I would get in cook tea, then we would sit round and do our homework together, as a family, I would help the younger two out and we have lots of fun.

It wasn't ideal, but that was the only work my mum could get. She worked shifts at a garage by the time I was sixteen. She didn't even get to see us all day Christmas day because she was rota'd in.

I'm surprised family-friendly still applies to your friend. I thought tha 'business needs' were still able to be considered in these circumstances?

flowerybeanbag Thu 10-Sep-09 11:47:55

Your friend's personal reasons for not more wanting to make the change are not very relevant, particularly given the age of her daughter. Focusing on her personal reasons for wanting to keep her hours will detract from the basic issue that her boss can't make these changes without her consent and has not followed a proper procedure to make such changes.

Whether the change is unreasonable is tied in with whether there is business justification for it, which we can't tell here, and what potential alternatives there are to meet whatever this particular business need is.

In the first instance she needs to formally notify her boss that she does not consent to the proposed change as I've mentioned before. She must also start considering whatever the business problem is that her boss is claiming necessitates the change, and coming up with alternative ways of solving the problem.

MrsSchadenfreude Thu 10-Sep-09 12:20:24

You said "one weekly late shift", which I took to mean, maybe one week out of four. You haven't said that she is being asked to do midday to 8.00 every day, every week - that wouldn't be part of a rota system, surely? Which is why I said "if true."

If you are now saying that she is being asked to work 12.00 - 20.00 every night, than that really isn't on.

Flowery is right. (Flowery is always right. smile)

stillfrazzled Thu 10-Sep-09 12:42:52

I think she is sticking pretty strictly to the contract side of it, flowery - I know she mentioned her personal reasons when it was first mentioned but has since gone by the rulebook.

And MrsS, I obv put it badly - I believe she is currently doing one late shift per week, and they're trying to force her to make it pretty much every night. Agree, it's not on!

MrsSchadenfreude Thu 10-Sep-09 13:57:34

Or I am just thick. grin

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