My employer is trying to change our working hours and conditions so that many of us start before 7am. In line with most professional jobs, we have all accepted the need to be flexible over the past few years and to work increasingly long hours. This latest request does, however, feel like a fundamental change to our working conditions, which is difficult to manage especially for those of us with children. Are we covered by employment law?Deborah Warren, associate in the employment team at Clarion law firm, says:
Yes. Unless your employment contract authorises your employer to make such a change to fixed working hours, they should seek your express agreement.
However, your employer might unilaterally impose the change without your consent and hope that no one complains – seeking in that way to gain “implied consent”. Or they might simply dismiss those who disagree and offer them a job under the new terms. Either of these is a risky strategy, of course, and could land your employer with more than one claim for constructive unfair dismissal.
Having said that, a degree of flexibility is expected in most professional jobs and constructive unfair dismissal claims are relatively difficult to win. You, as the employee, would have to convince a tribunal that your employer’s actions were so serious that they breached an essential term of your employment contract and forced you to resign.
However, another option for female employees would be to argue that this change to their working hours constitutes indirect sex discrimination. As the name suggests, this relates to a company policy, criterion or practice which, while applying to the whole workforce, has the effect of disadvantaging a group of employees with a particular characteristic protected under the Equality Act.
Tribunals still assume that women have more childcare responsibilities than men – whether that is the case in your family or not. It is therefore possible for a woman to argue that she is disadvantaged by a policy requiring her to attend work at a time when she has to drop off her children at school. Unless such a policy can be objectively justified by the employer, an indirect sex discrimination claim could be successful.
Whatever you decide, take the time to consider the consequences and take legal advice before you do something as drastic as handing in your notice.Daniel Barnett, a barrister at Outer Temple Chambers, says:
The first thing you need to do is go through your employment contract to see whether it contains a variation clause. This is a clause that allows your employer to make changes to your contract, without your direct consent.
The clause may read something like this: “We may make changes to these terms and conditions of employment on giving you 14 days’ written notice”, and it might even be specific to your working hours (but does not have to be).
If your contract does contain a variation clause, then your employer has a contractual right to change your working hours. This being the case, any male employees in your workplace will not have a claim under employment law.
Female employees with childcare responsibilities, however, might be able to pursue a claim for indirect sex discrimination as a 7am start will have a greater impact on women (who tend to have primary childcare responsibilities) than it will on men (who tend not to).
Having said that, if your employer can show it has a good business reason for changing your working hours to 7am, and that such a change is reasonable, then an indirect sex discrimination claim will not succeed.
On the other hand, if your contract does not contain a valid variation clause, your employer does not have a contractual right to change your working hours.
However, in practice, the employer could dismiss any workers who refuse to accept the contractual change and re-employ them on a new contract which stipulates a 7am start. As long as your employer follows a proper consultation process and can show a good business reason for its actions, you would not succeed in an unfair dismissal claim.
If you care for a child under the age of 17, or a disabled person, you also have a legal right to request changes to your working patterns. But it’s only a right to request – not a right to have – and an employer can say no, as long as they have a good reason.
On a more practical level, if you are a valued employee, it might be worth explaining your difficulties to the managing director or to human resources, either informally or by lodging a grievance. They might be willing to make an exception for you, if you approach things the right way.Email your career management questions to: email@example.com