Sometimes employers want their employees to change their hours or other working arrangements, for example, they no longer want an employee to work from home, or want them to work at a different office or factory. If your employer suggests a change, and you are happy with it, then you are free to agree a change to your contract. However, for many parents and carers a proposed change may make it impossible for them to continue to balance their home and work arrangements. If you are in this situation and you want to object to the proposed change there are various legal arguments that may help you. This template Letter of Protest may help you.
If your employer wants to change your hours they may be in breach of the law and you may be able to use this to argue against the change. Ideally you should try to negotiate with your employer, by explaining why you cannot do the new hours, and suggesting solutions where you can. However, if you are unable to reach an agreement you may have to think about whether you have any legal rights to insist on staying on your old hours.
The legal rights that you might be able to use as a parent or carer are breach of contract, sex discrimination, marital discrimination, unfair dismissal and the right to request flexible working.
If the proposed change means that your wages will be cut, you may have other claims (for unlawful deduction in wages) as well as a claim for breach of contract. There may be additional rights under the Equality Act which may help you, such as religious or disability discrimination. Get advice before making a claim.
You may also want to have a look at our Frequently Asked Questions on flexible work and imposed change here.
Breach of contract
If your employer is trying to change the hours you work, your place of work or something else, you need to think about whether what your employer is asking of you is a change to your contract or whether it is something which the contract allows. Look at your contract to see what it says about your hours/place/way of working. If you do not have a written contract think about what has been agreed orally between you and your employer. This is still a contract. If there has been no formal agreement but you have worked in a particular way for a long time with the permission of your employer, you may be able to argue that your current arrangements are part of your contract.
If your contract specifies particular hours of work then these arrangements can normally only be changed with your agreement. Even if your employer gives you something official looking saying “notice of variation of your contract” or something similar they usually still need to get your agreement to the change, or give you notice to end your old contract. If your employer ends your old contract you may be able to claim unfair dismissal (see below).
If your employer changes your contract without your agreement, or without giving the correct notice, this is called a breach of contract and may mean you could make a legal claim against them. However, even if successful this claim often only results in a small amount of compensation. Claims for breach of contract cannot be made in an Employment Tribunal unless the employment has ended. You can make a claim for breach of contract in the County Court without leaving your job, but if you do this there is a risk that you will be ordered to pay your employer’s legal fees if you lose the case.
You will need to consider whether your claim for breach of contract could be coupled with another claim such as unfair dismissal (if you have left employment) or indirect sex discrimination. If successful these claims can result in higher compensation than breach of contract claims. These claims must be brought at Employment Tribunal. The more valuable your potential claim, the more incentive your employer has to try to reach a compromise with you. You should seek advice before making a claim.
If there is something in your contract that says your employer can change things without your agreement get advice.
An exception to the principle that you personally must agree to any changes to your contract is when a trade union makes agreements on behalf of all workers. If it is part of your contract that a particular union can bargain on behalf of all the workers in a workplace, you may be bound to a change in contract terms which is agreed by them. This is still the case even if you personally don’t agree with the new contract term. Get more advice if this is your situation as you may still have other claims.
Your employer should give you advance notice of any changes it wishes to make to your contract and should consult with you beforehand. Usually the notice given of changes should be at least the length of the notice to terminate the contract. If they give you this notice they avoid a breach of contract claim.
Indirect Sex Discrimination
If your employer tries to make you work different hours or in a different place and you cannot comply because of your childcare responsibilities then you may have a claim for indirect sex discrimination if you are a woman. Statistics show that more women than men take the main responsibility for childcare in society in general. As a result, a change in hours of work may have a worse effect on women employees than it does on men. If this is the case for you, you may be able to argue that your employer is indirectly discriminating against you by insisting you change your hours.
However, if your employer can show there is a really good business reason for the change and that their actions are a proportionate means of achieving a legitimate aim then your claim would not be successful. To do this, they would have to clearly show:
- That there was a genuine business reason for the change.
- And that it was necessary to change your particular way of working, taking into account the effect on you personally, of the proposed change.
So, even if there was a genuine need for the change your employer would need to look at other ways of organising the work so that you personally did not have to change, for example, employing an additional part-timer to work on Saturdays instead of requiring you to do it.
Direct Sex Discrimination
Men are not able to claim indirect sex discrimination. A man would have to try and argue that direct sex discrimination had taken place.
Direct sex discrimination is where an employer treats men less well than women (or women less well than men).
Fathers can make a claim for direct sex discrimination if women in their organisation are being given more flexibility than they are. So, if your employer is making a change to working hours but is making an exception for some female employees because of their childcare responsibilities then, as a man you may have a claim for direct sex discrimination if s/he does not do the same for you.
You may also be able to make a claim if you can show that if there was a woman in your situation, she would be treated better. You should get advice before making this argument.
If you are a married man you may be able to argue indirect marital discrimination, that is, that more married people have childcare responsibilities than unmarried people. However this is untested and you should seek advice before making this argument.
If you are dismissed because you refused to agree to a change in your contract or you refused to sign a new contract, and you two years or more of service you may have a claim for unfair dismissal.
A tribunal would look at all the factors surrounding the change and the decision to dismiss you including the employer’s reasons for the change and the way in which the dismissal was carried out to decide if it was fair or not. A change in the business or a wish to harmonise terms and conditions can be a fair reason for dismissal and tribunals give employers a lot of discretion about how best to run their business. A stronger argument would be that you were dismissed because of sex discrimination (see above). Note that a discriminatory dismissal is unfair regardless of length of service.
Constructive Unfair Dismissal
If a significant change to your contract is being required or imposed, then you may be able to resign and claim that the employer has breached your contract. In other words your employer’s insistence on the change to your hours or place of work effectively ended the contract and left you with no choice except to resign. In legal terms this is called a constructive dismissal. If a tribunal is satisfied that your employer’s actions were effectively a dismissal, it will then go on to consider whether the dismissal was unfair, see above. Constructive dismissal can be complicated and difficult to prove so you should always seek advice before resigning.
If a genuine change in the nature of your employer’s business means there is less of a need for employees to do the type of work you do in the place of work where you do it, you should normally be offered redundancy. If your employer changes your place of work and the contract doesn’t allow this, you may be made redundant.
However redundancy does not apply to where you are being asked to do more hours, or work at different times.
If there is a redundancy situation, your employer would have to go through the usual redundancy procedures and you would be entitled to a redundancy payment if you have more than two years’ service. Note that where you are singled out for redundancy and you suspect you have been selected instead of others because of your working hours or childcare responsibilities, this could be unfair and discriminatory. Please phone the helpline for advice.
Right to Request Flexible Working
If you meet the criteria to make a request for flexible working, you may be able to make a request to vary your hours. The procedure is meant to be used when an employee wants to change their working pattern to a new one, rather than to stop an employer changing their hours.
There is a risk, in putting in a flexible working request that you imply to the employer that you accept the change that they have suggested and that you now wish to make a further change to it. This will make it difficult or impossible to bring certain types of claims. So, you must only use the right to request if you make it clear to your employer that you don’t accept the legitimacy of the change. You should do this by writing on the front of the application “This application is made on the basis that I object to the change being made and that I do not agree the change is lawful”.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.