Any employment law experts out there?

[Tinker]

Please help! For the last 5 years I have worked 9 until 16.30, in order to do my 7.5 hours per day. This means working through lunch. However, it means I can take my daughter to school and, now, only have to organise a childminder for after school.

However, have new boss who is insisting that all staff take a lunch break. I know I am entitled to one but do I HAVE to take it at lunch? I have suggested, through my own line manager that, if other boss insists, I will make up the 1/2 hour in evening to be told "he won't like that". If I have to take 1/2 hr at lunch I would need to pay childminder to take daughter to school as well as pick up AND, more importantly, it would mean I can't take her which would upset my daughter. Current childminder doesn't want to look after kids past 16.30 so it would mean finding another childminder (difficult - not many around) which would further upset my daughter.

Sorry this is waffly but am really, really pissed off by this. He has also said that if we don't comply we will get 'Less Effective' box markings next year - that's how reasonable he is

[sis]

Tinker, I am not a lawyer but my job is to give advice on good employment practice and employment law, so i can usually dig up cases on employment and it helps me in my work to refresh my memory! BTW, I am rubbish at remembering case names but can usually remember the main points to have been decided by caselaw.

On discrimination, there are some interesting times ahead as a whole raft of anti-discrimination legislation will be introduced over the next four years including legislation to protect again age, religious belief etc...

Faith, I don't think there is much more to add to WWW's advice other than to "threaten" the employer that if your dh doesn't get a job because they didn't give a good reference, you will be determined to sue the company using one of those "no win, no fee" lawyers that are advertising everywhere. Of course you don't have to follow through but the "threat" may be enough. Also, your dh could ask for the company to confirm in writing that they will give a good reference (even give an outline of the sort of things they will be limited to say) otherwise your dh will not give the company full notice - dirty tricks I know, but sometimes, you have to hit low.

[Kia]

I've just come back from a course to be the contact officer in my department for equal ops and sex discrimination. One of the things I did pick up on is that the major number of complaints under the sex discrimination legislation that tribunals are receiving is because employees are asking to work flexi-time and companies have been saying no. And they have to have a very good reason for saying no, it can't be 'because I don't like the idea'! I think there's been quite a few high profile cases recently about just this area involving a policewoman who didn't want to work unsociable hours because she has children. I'm always wary of companies stating that whatever they are proposing or 'having to implement' is in some EU Directive, because I deal quite alot with these and this is not always strictly the case, and usually has the company's viewpoint firmly in the high focus area!

[WideWebWitch]

I'm not an employment law expert, but I have taken an employer to tribunal before. I'm pretty sure (but please someone correct me if I'm wrong) that companies are not allowed to give a bad reference.

They are allowed to decline to give a reference or to give a miniumum type reference. My ex-employers confirmed at tribunal that the reference they would now give me would be "we confirm that wickedwaterwitch was employed by us from 1993-1999. Her position on leaving was XXXX and her salary was £XXXX" They are a global corporation and know that they are not allowed to give a bad reference. Interestingly, their policy internally is that no manager is allowed to give a reference of any kind without going through the Human Resources dept since they are afraid of resulting litigation.

I have a friend who successfully threatened an employer who had given a bad reference after he'd started a new job. The new employer wanted to dismiss him on the basis of the old employers reference and, when threatened by my friend, the old employer settled out of court for £20k since they knew they were in the wrong. (large financial services company in this case)

Just a thought, since I know I would get this minimum type reference from my old employer I have made sure that I've kept in touch with old bosses who no longer work there. If asked, they would happily confirm details of my work, reliability etc and potential employers seem to be happy with this since they are getting contact with someone who used to be my boss and knows my work. Could your DH use this? HTH

[Faith]

Dh is thinking about changing jobs ( he regularly works 10-12 hour days, travels an hour each way as well. However he is concerned that they will take revenge by giving him a bad reference - apparently they have done this to other people. If they did, does anyone know whether he would have any legal recourse? (Other than suing them, which we couldn't afford to do!)

[Tinker]

salalex - yes, I am a civil servant.

sis - can I get back to you on that. I was more enraged at the time and was prepared to take on the whole department. Unfortunately, it's now Friday night and I'm drinking some cheap red wine. I think it was really to do with changes to shifts/working patterns etc and how these could adversely affect women more, perhaps, since they are usually the main carers. I have got a copy of a London Underground case but any other infor is always useful. Are you a specialist in this field? Always good to know these things

[salalex]

Tinker,
Are you a civil servant??

[sis]

Tinker, was there anything in particular that you wanted to know about sex discrimination legislation?

[Tinker]

Thank you, everyone for all the information and support.

This afternoon, my boss called me in for a chat and told me not to worry, we'll find a way round it! So, at least this problem doesn't seem unsurmountable!

I'm still seeing my union rep on Monday since there are other issues going on at work. I'll post if there are more developments.

From the little I know of the Working Time Regs, lunch hours are not specified but you are required to take a 20 minute break if you work at least 6 hours, and this mustn't be at the end of a shift. So, if I have to take it, it's only 1 hour 40 minutes I need to make up at home.

Found a good Unison site and one called troubleatwork. It does seem ironic that very well-intentioned legislation designed to protect appears to be working against some people.

Thanks again everyone.

Natt - would be very interested if you could post some more about Sex Discrimination Act.

[sis]

Just a thought, Tinker, you could be excluded from the rest break requirements if you are "managing executive" or with " autonomous decision-taking powers" - Regulation 20

[sis]

Tinker, under Regulation12 of the Working Time Regulations (which did come about as a result of Eu legislation) all workers are entitled to a twenty minute break if their working day is over six hours long. As the Working Time Regs are health and safet legislation, they will supercede any other employment legislation such as sex discrimination legislation. Although the wording in the Regulations says that the worker is "entitled" to the break, the employer can "require" that the worker takes the break. Sorry.

However, Under Regulation 23, your employer could reach a "workforce agreement" to modify or exclude the right to the daily rest break - but the agreement has to be with the entire workforce or it's representatives.

I think your best bet is to agree to take a 20 minute break to ensure that the company is not breaking health and safety law.

I'm sorry that this is not the response you would have liked to have but I hope you can work something out.

[Natt]

Hi, Tinker - I am actually an employment law barrister and do a lot of sex discrimination work. Am rushing to finish something at the moment but will post some advice on the law a bit later if that helps you. Basically there are a couple of different issues here:
Working Time Regulations (based on European directives)which contain provisions about daily rest breaks
The Sex Discrimination Act: Requiring a woman to work particular hours / patterns can in some circumstances be indirect sex discrimination. This is complicated and will expand later!

[tigermoth]

Tinker, this sort of situation sounds so familiar.
So, so annoying - and I bet my bottom dollar your line manager knows you take your child to school before work, and that you have found childcare that fits round your current hours. I know he's not the decision maker in this case, but why is it so many bosses choose to ignore their employees perfectly reasonable family commitments and appeals for flexitime?

I do think, however, that the law states you must take a lunch break of some sort. It's just such a pity that your boss won't let you make up the half hour in the evening. Presumably he wants you in a half hour earlier in the morning so you work a full day.

If you can bear the loss of salary, could you suggest your hours are cut by half an hour so you start at 9 still, have a half hour for lunch and leave at 4.30 as before?

I'd also be a little wary of sticking my neck out about this until you know what your other colleagues (male or female) are thinking of doing. If all of you stick together on this, and make a joint suggestion, it could hold more weight and stop any personal retribution.

Hope you get some useful advice. Good idea to consult your union rep. Scummymummy, my dh used to be a union rep too!

[SueW]

At my last place of work, all staff took a thirty minute lunch break when they did a full day.

When I increased my hours from 4/day to 6/day, I was given an excerpt from the staff handbook which basically said that anyone over 18 working over 5.5 hours should take a 30 minute break and that this should not be taken either at the beginning or end of their shift and that the importnace of a break should be explained to staff.

I told my manager that I would prefer to work without a break but reserve the right to take one if necessary. The job was not stressful, we weren't pinned to our desks, there were no restrictions on eating or drinking at our desks or personal breaks e.g. going to the loo. We were covered by other Health and Safety regs e.g. recommendations to stretch and move away from the PC for a few minutes every hour.

In the four months I worked there, I probably took a 15 minute break three times - once around Xmas time to make some phone calls re daughter's nativity costume (!) and the other couple of times because the phones had been non-stop and I just wanted to go for a short walk and get away from it all for a few minutes.

Good luck with your negotiations.

[Crunchie]

Although I believe you have to take a luch break I don't think it has to be a whole hour. Therefore the suggestion of 1/2 hr should be acceptable

[Tinker]

Rhubarb - I have a horrible feeling that may be right. I will talk to him after speaking to my Union rep - but not directly. He's not approachable and likes to issue these order via email.

[Tinker]

Thnaks Scummy.

Am seeing my rep (again) on Monday about it and, so far, they are pretty much the arguments I've used. Her reply, so far, is that these are European Directives HOWEVER there are allegedly, child friendly policies that may mean individual agreements.

Have found a sex discrimination case for London Undergound - single parent not able to comply with a forced change in hours. She won. Am a little relucntant to dredge this kind of thing up yet because there are a couple of blokes who are equally angry about the whole thing.

This boss thinks the idea of strong management is giving lots of Less Effective marks. Er, doesn't that just mean he's crap at his job?

[Rhubarb]

Sorry Tinker but it is compulsory for all staff to take a lunch break, your boss could be pulled up for it if it was found out that some of his staff are working through. If you do work through your lunchbreak it should be classed as overtime and paid accordingly. However he does seem to be acting a tad unreasonably. Why not bypass your line manager and talk to him straight? Many bosses will respect a straight approach and it would help clear up any misunderstandings caused by talking through a middle-man. Hopefully you could come to a compromise. But he could get into trouble if you don't take a proper lunchbreak, so you have to look at his side too.

[ScummyMummy]

What a git faced loon he sounds, Tinker.
My partner the union rep reckons you might have a case for saying "I've worked like this for 5 years and this is my standard pattern of work and so can only be changed by negotiation. I'm therefore consulting my union rep and can't agree to any changes until I hear what she has to say." Also stress that these changes are going to disrupt your family life, be financially burdensome and add to your stress levels thus directly increasing the chances of you having to take stress-related leave from work (maybe hint that they might be looking at litigation/compensation if you had a nervous breakdown!).

The worry is that they may be enforcing these lunch breaks for legal reasons which might "trump" these arguments- definitely have a talk with your rep to get the full picture.
Good luck. Don't let those b* grind you down.

[pupuce]

What a bumer ! If no one can help you on the site, check the CAB ? Or the maternity alliance ?

Good luck - do tell us the official answer !