Help from an HR person?

[ErnestOwl]

Really could do with some help if possible. I'm employed in a senior position in a small company. When the virus hit, we looked to be in a bit of financial trouble, and I offered to go down to the 3 days a week (from 5) to help save money. No change to my contract. I've now asked to go back up to 4 days, but am being put off. I'm due a change in role and the boss has said he'd rather finalise what the new role looks like before agreeing new days. I feel as though I've been shafted. I did this to help out. My contract hasn't changed. I've got a call with him later today and I don't know how to handle it really. We have always worked really closely together and I trusted him. Anyone around to advise me?

The trouble is that employment contracts don't just exist on paper, they exist in the much more ambiguous space of 'custom and practice' as well. So when you say there was no change to your contract when you dropped down to 3 days, you mean there was no written confirmation of what was happening, why and for how long. In reality there was a change, because you reduced your hours and your employer didn't complain that you suddenly weren't at work 2 days a week, and presumably reduced your pay etc accordingly. And so that constituted a mutually agreed change to your contract whether or not it was written down.

The issue now is that you are now saying that you thought it was a temporary change due to the downturn in business, whereas your employer seems to have thought it was a permanent change at your request. I assume you don't have anything at all in writing, even an email or text exchange to support your view - was it all done verbally? If you do have some evidence, even your own contemporaneous notes, you can try and present this to your boss but if it comes down to one's persons recollection of a conversation against another or even a genuine misunderstanding/miscommunication then you are going to be on a bit of a sticky wicket.

If you want to try and keep things amicable and don't want to pull the nuclear option of threatening to resign altogether (which from the sounds of things is your best leverage in this situation as you are clearly a valuable employee) I would try and treat the whole thing as an unfortunate misunderstanding rather than a deliberate shafting, and persuade the boss using the value you can bring to the business in the extra 2 days a week? And perhaps if that doesn't work, as a compromise try and get a date agreed by which you can return to full time (and get it confirmed in writing as a result that all this dropping of hours is definitely temporary, not a permanent change to your contract and is to be with business needs, 100% not at your request). I assume there's no chance of having your salary topped up if you do have to drop hours?

Thank you for your very detailed reply. I also put this in chat, I was worried nobody would see it here. But this is so helpful thank you - although very depressing. I genuinely had no idea that this would be the case. I don't think I have anything at all. It was all done over the phone. I'm going to have to resign aren't I.

No worries - don't resign without at least trying to sort it, it may be that your boss does remember agreeing it as a temporary change but is chancing his arm hoping you'll agree to stay at 3 days if he puts a bit of pressure on/acts vague, and if you push back a bit or if he's faced with you potentially leaving then he'll fold (a bit shitty of him if so but I guess if the business is not doing well he may feel a bit desperate).

Absolutely do not resign straight away, you can strongly hint that you can't manage financially on 3 days a week and would need to reconsider taking on the new role etc if that is the situation, but surely 3 days a weeks' pay is better than nothing? If he won't play ball on the hours I'd use the 2 days a week you'll have free to look for a new job (and of course don't do any extra work/discretionary effort/go above and beyond if they aren't prepared to treat you right!). And I guess lesson learnt that in future no matter how amicable things seem to be, always always cover yourself for any hours or salary changes in writing, it should be your manager's responsibility of course, but I tend to make sure to at least email them with a 'for reference, this is what we agreed' note asap after we've spoken to make sure things aren't conveniently 'forgotten' later down the line... we've all been there though so don't beat yourself up too much, you'd assume when you are prepared to put yourself out and be flexible to support someone they'll have your back too but sadly it isn't always the case

You are kind. Thank you. I know him well, he is chancing his arm I think. Which makes me really sad. We built this business up together and well, long story, but, yeah....

Just got this advice from online lawyer, does this make sense to you?

"As the changes were proposed by you and you volunteered to educe your pay to help the company, you should be able to withdraw that proposal at any time and return to your substantive pay. As this was not a change enforced by the employer and not something which resulted in a permanent or fixed-term change to your contract, it can be reversed at any time an should not have to happen with the employer’s consent. If they are not happy about it and wish you to remain on the reduced terms, then it would be up to them to take their own steps to implement these changes, rather than have to rely on your own voluntary reduction.

There should be nothing stopping you from returning to your original terms now, whilst the employer is still contemplating what the new role should look like.

If there are issues with this and you and the employer cannot agree on way forward, you may have to consider raising a grievance about it."

This was the message from boss earlier:

I'm currently doing 5 days and just accruing time in lieu as extra holiday. All fine initially, but now I want paying.

"I’d like to agree the new role before we make any changes to your days and payroll. My ideal scenario is that you get a draft of the role on paper to me this week, we sit down next week to talk it through and then we can start to map out what a transition period looks like. I think then we’ll have a fuller picture to work out number of days needed in current role vs. new role and it’ll help everyone know where we are. If you’re happy to continue to log any days you’re accumulating in lieu until we have that sorted – that would be great"

Thank you so much, feel free to ignore this, sure you have better things to do.

It does - but I think your employer's push back if it comes to it will be that (a) you requested the change of hours, it was your idea not their's (he could even claim you requested it for personal reasons rather than business-related ones, if no notes or record of the conversation exist it will be your word against his) and (b) that it is not a theoretical 'proposal' to reduce your hours under discussion but a decision some months ago which was agreed and implemented as a permanent change and he has adjusted his budgets accordingly etc so now cannot accommodate your 'new request' to change your hours back again. Who knows how it would go if it got as far as a court case, I'm not saying you'd have no chance, it will depend on the exact facts, circumstances, context, which of the two of you is believed to be honest if there is really no other corroborating evidence.

But ideally you don't want it to get as far as a court case, which is a stressful and expensive route. Having this advice from the lawyer in your back pocket could be quite useful, I am sure your employer won't want it to get that far either for the same reason, so if you are quite robust with him there's a good chance he'll back down (particularly if like most employers he isn't too au fait with employment law and its nuances!)...

As pp poster says it depends on what was said/agreed and how well documented. Would handle the call as suggested to see if you can solve this amicably. Have a timeline with evidence e.g. emails that you can refer to.

I am not clear if you eventually want to go back to your contracted hours or if 4 days is what you want long term. In either case if you can't resolve this amicably put in a formal flexible working request to revert to your contractual hours/4 days from X date. Your employer will have to set out why they can allow you to do this which documents their rationale. Legally there are only certain reasons for refusing a request.

I sent an email to the team saying it was for personal reasons - home schooling etc - so nobody got alarmed about the impact of coronavirus. I did that voluntarily too. I'm such an idiot.

@ErnestOwl

I sent an email to the team saying it was for personal reasons - home schooling etc - so nobody got alarmed about the impact of coronavirus. I did that voluntarily too. I'm such an idiot.

But did you agree with him via email that it was to help out during Covid?

The issue here as well I'd say is that did you continue to deliver 5 days worth of work in the 3 days? In which case, from his perspective, you working 3 days and being paid for 3 days, is a much better option. Personally, I'd be very resistant to working 5 days a week currently and supposedly getting time off in lieu and I hope you have that nailed down in writing because otherwise you're going to resign, he will technically owe you 20 days holiday and you're not going to get paid. I mean, how much holiday have you accrued this way so far? I'd be stopping that pretty quick.

In light of what you've said, t's unlikely that he's deliberately trying to shaft you. However, he very clearly is happy to take advantage of your good will.

Also, assuming you want a five day a week job because that's what you need financially etc, I'd personally be inclined to tell him that you tok the job on a five day a week basis which met your personal and professional needs. During Covid you felt that it would be helpful if you could help cut costs so agreed to a reduced week but long term, you need a job that is full time. If he's considering changing this then there may need to be a different conversation. But you may need to be prepared to walk away if he doesn't play ball.

I actually think I want 4 days a week. Which hopefully will be a positive for him. Have spent all day searching email and realised that I have nothing in writing. I asked for meetings and then we switched to Teams calls to talk about it.

@Margaritatime

I would not recommend OP puts in a flexible working request to resume or increase the hours. That would be added support to the employers claim that it was a permanent change, something which I think OP will struggle to prove otherwise anyway.

I do not see how a request to increase hours could be deemed to be a flexible working request anyway, more hours generally means less flexibility.

OK. I think the panic might be over. Just had a chat, agreed to increase to four days from beginning of November, and that can be that in new role too. I now need to put that in writing, yes? I have learned my lesson!!!!

@ErnestOwl

OK. I think the panic might be over. Just had a chat, agreed to increase to four days from beginning of November, and that can be that in new role too. I now need to put that in writing, yes? I have learned my lesson!!!!

Great, well done, that's a brilliant outcome. But yes, I wouldn't be trusting your boss an inch from now on and I'd be getting my 'notes from our conversation' over to him asap and ensuring I had a proper formal letter/amended contract in due course as well...

Thank you everyone, really appreciated the moral support and wisdom on this

Thanks @maxelly, you've been really generous with your time today and helped me out (and wised me up) enormously!

Thanks @maxelly you've been really generous with your time today and helped me out (and wised me up!) enormously!

OP glad it’s resolved.
@Florencex If the op was looking to settle on contractual 4 days a week she would have to have made a request with her starting position her full time hours. I should have been clearer that this would not be until the current position was clarified.
The right to request flexible working is for both increases and decreases in hours as well as keeping the same hours but working differently e.g from home, altering start and end times.