Does this clause oblige me to increase my hours

[thornberet]

Hi all, here is the clause in my contact.

Changes to Working Hours

It may be necessary to change your working hours, on either a temporary or permanent basis, in order to meet the commercial needs of the business. As much notice as possible will be given to you regarding any changes in working hours and you are asked to fully co-operate with regard to temporary changes. Although permanent changes to working hours would only be introduced after full consultation, you would be expected to co-operate and not to unreasonably withhold your consent to any changes.

I’ve been working part time for my company for over a year after returning from mat leave. They want me to increase my hours. I can’t due to caring responsibilities. Is that a ‘reasonable’ reason to ‘withhold’ consent?

I am also pregnant, in my first trimester and haven’t told them yet.

I actually wouldn’t mind being made redundant (i would like to get my 6 weeks mat leave ideally). They have been hostile and difficult ever since I announced last pregnancy. I am a good employee- almost cramming a full time job into my hours to try and keep this at bay but they just want more more more and I’m burnt out.

What should I do? Refuse and hope they drop it/risk redundancy? Stall for a month until the 12 week scan and hope they drop it then?

You can try to stretch it out until your 12 week scan. If you can, wait until next Friday afternoon to respond, and say sorry due to childcare reasons you can’t work more hours. If they ask you to look again agree to look into this but it will take some time. At the end of 2 weeks go back and say exhausted all options etc. and you should be near to your scan date.

Given how they behaved last time only disclose your pregnancy if you have to.
When you do disclose your pregnancy ask for a risk assessment and make it clear you can’t increase hours.

Notes:

1. Once you reach 15th week before due date they have to pay all 39 weeks SMP, even if you are made redundant. They can pay SMP as a lump sum if you are made redundant, which has tax and NI implications.
2. If you increase your hours the first 6 weeks of SMP may be higher e.g. 90% of average earnings.

Thank you so much @Foreversearch - that’s good advice I will do that. Do you think the clause means they can dismiss me (rather than make me redundant) for declining to increase my hours. That would probably be the worst case scenario.

If I was sure I was going to leave after my mat leave I would probably agree to increased hours for the reason you pointed out regarding SMP @Foreversearch. However, a lot can change in 8 months so I don’t want to completely rule out going back. The actual work suits me well, its just the needless beaurocracy and constantly changing ‘targets’ and assessments that are driving me mad. This wasn’t a problem when I was full time, pre mat leave. They’ve trapped me in a corner because they’ve given me impossible targets and then saying because I’m not reaching them that my job can’t be done part time. My type of work isn’t specialist or unique I don’t understand why they couldn’t get some extra freelancers or another part timer. It doesn’t make sense to me I’m the only part timer and I think they just don’t like that I’m not wholly ‘theirs’.

Just tell them you can't do it. If they try and force you then resign.

@thornberet if it came to it they would need to make you redundant due to a change in business needs means your job no longer exists I.e. PT job becomes FT.

The other option would be a settlement agreement where for £ you agreed to leave. The £ would be at least redundancy money.

What you need to do is make sure you disclose your pregnancy before it gets anywhere near redundancy.

See how you get on and come back to the thread if you need more advice.

Contact Pregnant Then Screwed to get their advice. This could be classed as discrimination, and you could have a case for constructive dismissal. I’d get advice from them (or your union, ACAS etc) before doing anything.

It sounds like the part time hours was a trial hence the clause?

You could say that it will take you a month/6 weeks to sort out childcare as a minimum to increase your hours. Does that buy you enough time to announce your pregnancy?

Ah @RandomMess i never got an updated contract after I went part time (I did ask). The clause is from my old, full time contract.

You do not have to consent to an increase in your hours. If they dismiss you, they may call it redundancy but legally it isn't. If you have worked there at least 2 years (including your time on maternity leave), you may have a claim for unfair dismissal if they sack you.

sacking you because of your maternity or caring responsibility status is discrimination, and illegal.
making you "redundant" because you are part time and they want someone full time is also illegal. it's only redundancy if the job doesn't need doing any more, though a generous compensatory payment may be called "redundancy" it's really not, and will (when eventually offered) come with a requirement that you sign something that makes this quite clear.

However, if they want to be rid of you they will sooner or later. the fact that it's illegal really only boils down to 'how big a payout can you get out of them to agree not to sue their arses off for their illegal treatment?"

are you in a union?

make sure whatever eventual settlement reached includes an agreed positive reference. some unethical firms will agree to whatever payout and then shaft their ex-employee's prospects of ever working again by refusing to give references.

this whole process can certainly be padded out to last until the critical weeks that are used to calculate SMP. then leave them behind.

So its actually worse than I thought. No mention about upping my hours, but instead have decided they want me gone. They said I wasn’t hitting my performance targets (which were ludicrous from the beginning - incidentally the same targets as I had working full time) and that I need to increase my output. I have been working as hard as I can sustainably maintain. I didn’t really respond as I’m in shock. They basically said I am not as committed as the others (don’t go to out of hours events, offer to take on more work etc) and that I need to pull my finger out. I have a two year old and work 2 days a week how am I possibly going to be as committed as the others?

so, my questions are,

1. how long does it take to sack someone for performance issues
2. Dh thinks I should tell them about the pregnancy immediately, as it may have been impacting my performance. He thinks I will be more protected if I tell them about the pg. I think this will just give them a reason to hurry up and dismiss me quickly before mat leave.
3. If they have issues with my performance, but it turns out that I was pregnant and suffering in the first trimester and had to take time off/ was a bit useless due to that, can that retrospectively go down as pregnancy related illness not?
4. If the meeting was an ‘informal warning’, as in a precursor to a formal warning, do they have to say so. Or should I just assume it is?
5. If my output (which is measurable) has remained consistent throughout my employment- including pre mat leave - can they really cite performance? Like can they add more to my plate and then say I’m not meeting the work load?

I know for sure that there is nothing actually wrong with my performance - and they have not said it has dropped, just that it was never up to scratch in the first place. Which is news to me - i’ve been back from mat leave for over a year. They’ve added more to my plate and also made it mandatory to attend events out of hours, which was previously discretionary.

I feel they’ve played it better than I thought they would and @JeimeHonfUcoim ‘s statement of ‘they will be rid of you sooner or later’ is true. I just can’t believe they’re going the performance route. I’m only 8 weeks now and I haven’t had a scan and I’m so worried something will happen with this pregnancy. It’s 12 weeks, I think, before I reach the magical 15th week. I don’t know how I’ll cope.

I also really don’t want to let them ‘win’ by quitting because I know they’re being discriminatory. I had glowing appraisals pre dd and I now work even harder. I think I will have to quit after mat leave as there’s clearly no future and I don’t want to work with people like that. After the meeting my line manager was all breezy and friendly like nothing had happened I feel like i’m going mad.

Are you in a Union? If not, contact pregnant then screwed for their advice. You need legal advice, as they most likely are being discriminatory. You won't keep your job, you don't want to, but by going to legal route you should get a payoff at least.

How long were you working for the comapny before your previous mat leave? Have you been with them for more than 2 years?

If they have been giving you the same level of targets as a Full Time employee when you are only working for them for 2 days a week that is definite evidence of discrimination and you would have a Constructive Dismissal case against them - this won't force them to keep your job open but it will mean you have a good chance of a decent severence package.

The formal processes for all these things should take you beyond the magic 15 week point that is used for calculation of Maternity Pay anyway, so long as you don't cave and hand in your notice.

Keep everything in writing. Keep backups of all communications on a personal device because when you leave you won't have access to your work emails any more. Download and keep any relevant policy documents they have on the internal network

Even with a performance management process there has to be a fair opportunity for you to engage with the thing they are saying is a problem.

Do you have enough evidence and detail of your historical targets that you can write down saying "Please can you clarify - you seem to be suggesting that someone working 2 days a week ought to be able to achieve the same output as someone working 5 days a week, and want to treat it as a disciplinary issue if such a miracle can't be achieved, which a court might well see as indirect sex discrimination"

Thanks @JeimeHonfUcoim that is really good advice. I was there a year before my previous mat leave. I have been there over 2 years. I do have evidence of pre-mat leave targets AND I have an email from my boss, from a month ago, saying that my line manager is ‘pleased with the way I started the year’.

Do you think I should say I’m pregnant now or wait until my 12 week scan?

Employer doesn't know OP is pregnant

I would tell them you are pregnant.

They can still dismiss you on performance grounds when you are pregnant but by being pregnant they should be extra careful about following proper procedures.

Best advice - call ACAS tomorrow for advice. They will advise you on your rights and the best approach to take with your employer.

But she's still a mother to a young child, and it's that which has "screwed" her, not her current pregnancy. Pregnant then Screwed will still be able to advise.

@thornberet I agree talk to pregnant then screwed. They are experienced with this type of scenario.

Is there any chance they could suspect you are pregnant?

Practical advice,

• Start by asking for a copy of the performance management/ capability policy and procedures. If the don’t have one refer to ACAS

www.acas.org.uk/capability-procedures Make sure they follow the procedures.

• Normally the first step is to agree objectives - reasonable ones and to give you time (should be in the policy but 3 months) to improve.
• Make sure you book weekly 1:2:1s to go through your objectives for the last week and agree new objectives for the next week. Follow up each meeting with an email confirming the discussions. A bullet point list is fine.
• If they start talking about dismissal, ask for a copy of the policy, if there isn’t one they have to use the Statutory ACAS one.
• https://www.acas.org.uk/dismissals
• https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html

This should give you some breathing space.

Note: If you drive/push them to follow the correct procedures and keep a record e.g. emails plus a spreadsheet detailing evidence of unfair treatment it will be much harder for them to prove they lawfully dismissed you. It also shows how well you engaged in the process.

I am sorry you are going through this.

HTH

@thornberet do everything in writing. If it’s a meeting an email to confirm you said not happy with performance because of xyz. I said abc.

everything in this. this is good advice.

Thanks for all the replies it has been very helpful and reassuring. I am kind of grieving my treatment, there have been bad signs for a long time now but I’m an optimistic person and chose to believe that everything would be ok and that most people are reasonable. I’ve just found out they’ve got a new freelancer starting too - which may have triggered the sudden harshness. My next step is to tell them about the pregnancy and then argue that giving a part timer the same KPIs as when they were full time is unreasonable - hopefully we can agree some objectives that are actually doable at least until I go on mat leave. I know they will get me eventually (the amount of events they are suggesting is incompatible with family life) so I’m not holding out hope for resolution. Just need to get through the next 7 months and say goodbye.

The imprudent part of me wants to make it really hard for them - make them fire me rather than quitting after mat leave - but I know it’s not worth the mental health costs.

Wish me luck.

Again the amount of events should be in line with, not the same as full timers.