Back from maternity leave- work trying to change my pattern

[Flowersandpineapples]

I am returning from maternity leave and my employers are trying to change my work pattern.
I had a set work pattern of two and a half days set days and a floating day which could be used at evenings or weekends or on my non working days. There were never any issues with this.
I am now returning and they want me to do three and a half set days- so I can't have the floating day anymore.

I have argued that this pattern is an implied term of my contract as I have worked it for two years and I am reliant on it for childcare.
They are saying that is irrelevant as my contract does not state my specific work pattern and therefore they can change it at any time.

Is this correct? What can I do? I would be so grateful for any advice as this is ruining the final months of my maternity leave, as they have been dragging this out for months.

Have you formally put forward a compromise of an additional half day being fixed and the remaining half being worked in the office but not necessarily the same day each week as it is dependent on your partner’s shifts?

The more reasonable you are in offering compromises to meet their business need, the less reasonable they look if they insist on only their preferred pattern.

No, they haven't asked me to. They have simply said no because it doesn't meet the needs of the business (although I strongly disagree with the points they have used to justify this) and said that because of the wording in my contract I have to work the set days that they tell me to. Would you advise I get back to them and say would they be willing to look at a compromise? I get the impression that they are trying to avoid that, and that it why they are so determined to prove that the set pattern I have worked is not an implied term of my contract so I am worried that if I get back to them asking for a compromise then they will use that to remove my rights all together?

Without going into too much detail (I don't want to be identified) this has been dragging on for three months. They have told me numerous times that I am not allowed to apply for flexible working, said that because I'm part time I don't have the same rights as full time members of staff and then to reapply for flexible working and used what I feel are tactics to intimidate me and push me into a corner where I do what they say. They arent willing to meet with me face to face about this and always take weeks to respond to any of my enquiries and mean while it is almost time for me to return to work and I do not have childcare sorted for this additional day. I have been seeking help and advice along the way but each time I get through one hurdle they put up another one which is why I may seem like I'm being overly cautious or difficult. I'm really grateful for your help.

Otherwise you are relying on an argument that:

a) your floating day (or rather do-some-work-in-the-evenings-and-weekends-to-make-it-up day) has been established as contractual by custom and practice; and

b) the following clause of your contract (although it makes no mention of “reasonable” in terms of what the change could be) does not apply: “they can give reasonable notice to change my working pattern; and

c) even if you argue that the clause only applies to “reasonable” changes, that the change they are after isn’t reasonable.

I’d say you have a reasonable argument that (a) is the case. Whether (b) is the case partially depends on whether they ever exercise that clause, ie the flexibility required is genuine and is used. I’d say arguing that what they want isn’t reasonable is going to be an uphill struggle.

It also sounds as though they are unlikely to cave in any time soon, which means you would need to be prepared to actually go through a formal dispute and possibly legal action.

Pragmatically-speaking, given all the above, negotiating (or at least attempting) a compromise would seem sensible. It’s possible to suggest a compromise whilst at the same time being clear that you do not accept their position.

On what basis do they say you are not entitled to make a flexible working request, and have fewer rights because of your part time status?

I agree. Do you think I say that my understanding is that my floating day has been established by custom and practice which overrides the clause in the contract. But that I would like to suggest a compromise that would meet the needs of the business?
That way they know that I would take this further if we can't find compromise (I think I would have to as I don't have any viable childcare)
Wha about if they ask me to reapply for flexible working?

I don't think they had any grounds to tell me I wasn't able to apply for flexible working or that I had less rights as a part time worker (I'm actually not sure if it was legal for them to tell me that) but i think it was my boss putting pressure on me to comply to doing four fixed days and saying anything he thought would make me comply. I'm usually quite an easy going, "yes" sort of person who avoids conflict so I think they thought I would agree to whatever they told me.

”Do you think I say that my understanding is that my floating day has been established by custom and practice which overrides the clause in the contract.”

I think they are two separate things. I think your working hours as established by custom and practice overrides the fact that you don’t have any set hours/working pattern outlined in your contract.

Whether the clause whereby they can vary your working pattern is valid/enforceable is a complete separate question in my view. Regular hours established by custom and practice doesn’t override a clause giving them the right to vary working pattern. They would be relying on that clause now even if your contract specifically stated your current working pattern.

I would suggest writing saying that your understanding is that your current working pattern has been established as part of your terms and conditions by custom and practice, and you do not give consent for the change they are proposing, and will therefore be returning on that established pattern on whatever-date-it-is. However, you are prepared to consider a compromise variation as follows: [set out whatever you propose], as an alternative to you returning on your old hours.