Frequently asked questions about flexible working and imposed change
Q. My employer hasn’t followed the flexible working procedure properly – they keep going over the time limits and haven’t given me a written decision.
A. First of all, make sure that you have made a formal request for flexible working which contains all the points required by the law. Keep a diary of what happens so you can be sure about how your employer has breached the procedure. You could send them a letter (keep a copy) reminding them of the time limit for the written decision, and, if you still don’t get a response, go to the next stage of the procedure, an internal appeal or a grievance.
Q. My employer has given other people part time work but won’t give it to me. This seems unfair.
A. Although your employer’s treatment may seem unfair, it is not necessarily illegal. Employers are allowed to treat people differently, as long as it is not unlawful discrimination. Rather than arguing that things are unfair (which is unlikely to help you get what you want), think about these points:
- Is there some form of discrimination? For example, you may think your employer has not given you flexible working because you are a man. Or you may think that your employer’s refusal of your request is indirect sex discrimination because it has more impact on women as a group. Remember that discrimination is only unlawful if the treatment is because of one of the characteristics covered by law (age, sex, disability, race, sexual orientation, transgender status and religion or belief). Also, even if there is indirect discrimination, it may not be unlawful if your employer can justify it – they may be able to show that giving you what you want would really be a problem to their business. You can find out more on the Equality and Human Rights Commission website.
- You may be able to show that your proposed flexible working arrangement would be successful because someone doing a similar job has changed their working pattern and it has worked well. Maybe you can use this as evidence to show how your own change would fit into the workplace. On the other hand, sometimes it is harder to argue for part-time hours because other people are already part-time, and your employer has a genuine need for any remaining staff to be full-time.
Q. Can I take my friend or partner to a meeting with my employer? I’m not in a union and I don’t want to ask a colleague because it would be difficult for them.
A. You don’t have the right to take a friend or partner to the flexible working meeting. You can take a colleague from your work place. It may be worth asking a colleague even if initially you think it would put them in a difficult position. You can agree on their level of involvement and just ask them to be there for moral support or to make notes. You can always ask your employer if they would agree to your taking a friend or partner: although they don’t have to let you, they may be quite happy with it and you won’t know unless you ask.
Even if you go to the meeting on your own, it’s a good idea to run through what you want to say with a friend, partner or colleague beforehand to help you feel more confident. Check with your employer, sometimes they will let non-colleagues (for example Trade Union Representatives) attend meetings (although they don’t have to).
Q. There’s no point in appealing against my employer’s decision. I know that they will just make the same decision again and the same people will be at the meeting.
A. It’s true that if you appeal, the appeal meeting could be with exactly the same people as before. There is no requirement for different people to attend. However, it is still worth appealing as it gives you the chance to put your case again, show that you know your rights and are serious, and if you do need to take things further, will demonstrate that you gave your employer every chance to negotiate with you.
The internal appeal process is one of the reasons you need to leave plenty of time for your flexible working request.
Q. I have a management position and my employer says this has to be a full-time job. I don’t mind giving up some of my responsibilities. Will they offer me something else on a part-time basis?
A. Your employer does not have to offer you a different job. Your right is to request flexible working in your original job. You should think carefully about what your employer’s reasons are: it is not sufficient for them just to say it has to be full-time.
If you go through the flexible working procedure, your employer must give you a written decision and can only turn you down for certain business reasons. However, you can negotiate with them as part of the process, explaining which bits of your job might be done by someone else for example, and discussing the form of the job you envisage doing on a part-time basis. Alternatively, you might feel it is perfectly possible for you to do all of your job on a part-time basis with a job share partner, or simply that the business will operate well with a part-time manager.
Q. I have been employed for two years and work in a warehouse packing clothing for distribution. I am contracted to work Monday to Friday 9-5.30 pm. Because business is good my employer wants to start opening six days a week instead of five. He has told everyone that from next month all staff will be on the rota to work two Saturdays a month. He is not willing to make any exceptions as he wants to be fair to everyone by getting everyone to do the same. I cannot work weekends as I am a single parent and I have no one to look after the children.
A. Unless there is a good business reason for this change you are likely to have an indirect sex discrimination claim against your employer (if you are a woman) as well as claims for unfair constructive dismissal (if you resign) and, depending on the terms of your contract, breach of contract.
Even though there may well be a good business reason for opening six days a week there is probably not a good reason for requiring everybody to work on Saturdays regardless of his or her circumstances. Because the work is relatively low skilled it is likely that he could recruit some Saturday only part-time staff to cover this work if some of the existing staff could not work on Saturdays because of their childcare responsibilities.
Q. I work in a call centre doing shifts from 8am – 4pm or 10am – 6 pm. My employer wants to extend the centre’s opening times to 8.30 pm and has proposed a new shift of 12- 8.30 pm which will be worked by everybody on a three weekly rotation. I cannot do that shift except at the weekends when my partner is at home. In the week he does not get home until 7.30 pm so I would have no one to look after the children between 6.30 pm (when their after-school club shuts) and 7.30 pm.
A. Again you may have a claim for breach of contract and (for women only) indirect sex discrimination, more information on this here. It is unlikely your employer could justify their reason for this change unless they could show they had fully explored other ways of organising the rota and found all other ways to be extremely difficult to implement. In most cases it would be possible to still run a full service by allowing some people fixed shifts and rotating the others or by recruiting additional staff to cover the evening shift. Some companies also offer self-rostering.
Q. I work for a company doing administration work. The company is going to move to a different location which is 1.5 hours further travelling time than I have at the moment. My contract doesn’t mention anything about moving to another site.
A. Without a mobility clause in your contract your employer cannot make you move to a different site so far away. Because the new place of work is so far from the current place of work, you should be offered redundancy. Alternatively, you may also want to explore the option of remote working, and see whether any of your job could be done from home if you did want to stay with the company. Even if there is a mobility clause in your contract the extra distance may have such an impact on your childcare responsibilities that, if you are a woman, this could be indirect sex discrimination, more information on this here.
Q. I am a nurse working shifts and have always had fixed days. Now a new manager has come in and wants me to do nights as well which I can’t do as I am a single dad.
A. Unfortunately as a man you can’t use the indirect sex discrimination argument. You should look around to see if any female nurses are being given fixed days. If they are, you may have a claim for direct sex discrimination.
If you are married (but not single or divorced) you may be able to claim indirect marital discrimination. In any case you may have a claim for breach of contract and possibly unfair dismissal if you are sacked for refusing to work nights, or constructive dismissal if you leave. You could raise a grievance or make a flexible working application (but explicitly on the basis that you do not accept the legitimacy of the employer’s change) if you want to keep your job, more information on this here. You should take legal advice before resigning.