Can I change the days of the week I need employee to work?

apples1

Hi,
We have recently taken a franchise. The employees transferred to us under TUPE regulations. One employee who has a 37.5 hour per week contract has been employed for eight months. He has always worked mon - fri. We need him to work Saturdays (and have a day off in the week instead) as all the other full time staff do.

He doesn't want to work Saturdays and when asked always makes excuses. He has four children, one of whom we are told has downs syndrome and he has also made us aware that his wife is epileptic. Allowances to his working hours are made during the week to allow him to take some of his children to school so he works 9.30 until 6pm whereas other staff vary start/end times between 8.15am & 6pm.

When we ask him to work a Saturday (with at least six weeks notice) he is "already going out" etc. He does not say he can't do it due to the wife/child issue however he does use this as his reason for not being able to adjust start times in the week so we expect that if we put him into consultation to change his hours he would find a way to use these to support his case.

Where do we stand on this? He can legally opt out of Sundays so he's got us on that one but can we enforce the Saturday working. We have a robust business need to do so.

looby-loo_2

I had just this problem where staff doing the same job were on different contracts. I wanted to even things up. I had to give 4 weeks notice (infact I gave 8 weeks)
This was in education - it could be different in private sector.

apples1

Thanks Looby,
If I put them into consultation I would expect to have to give notice. Anyone else - any thoughts?

ceridwen

apples1 wrote: »

Hi,
We have recently taken a franchise. The employees transferred to us under TUPE regulations. One employee who has a 37.5 hour per week contract has been employed for eight months. He has always worked mon - fri. We need him to work Saturdays (and have a day off in the week instead) as all the other full time staff do.

He doesn't want to work Saturdays and when asked always makes excuses. He has four children, one of whom we are told has downs syndrome and he has also made us aware that his wife is epileptic. Allowances to his working hours are made during the week to allow him to take some of his children to school so he works 9.30 until 6pm whereas other staff vary start/end times between 8.15am & 6pm.

When we ask him to work a Saturday (with at least six weeks notice) he is "already going out" etc. He does not say he can't do it due to the wife/child issue however he does use this as his reason for not being able to adjust start times in the week so we expect that if we put him into consultation to change his hours he would find a way to use these to support his case.

Where do we stand on this? He can legally opt out of Sundays so he's got us on that one but can we enforce the Saturday working. We have a robust business need to do so.

Can I draw your attention to your own first 2 sentences? YOU took on the franchise. TUPE applies. End of story. Morally you have to accept this mans right to continue working weekdays only. I would have thought that legally you have to as well - I hope so.

If you keep pushing and pushing him (as you obviously are) to work Saturday you could find yourself facing a claim for constructive dismissal from him.

I think its awful the way you are obviously pressurising this man and trying to make his life a misery (when he already has to cope with the personal problems you yourself have mentioned).


PS: Just googled to check position.

http://www.berr.gov.uk/files/file20761.pdf

I refer you to page 7 "employees employed by the previous employer when the transfer takes effect automatically become employees of the new employer ON THE SAME TERMS AND CONDITIONS..."

Also page 17 "their previous terms and conditions of employment carry over to the new employer".

Case closed!

You could have googled for this yourself. Reason you didnt - because you hoped someone would come back to you telling you a way round this. Didnt work - so now stop harassing this poor man.

sinizterguy

Why should an employer not have an employee working the hours that is required for the company as long there is fair pay, a fair notice given for change of hours and allowances made for his personal circumstances (in this case, different starting hours, etc) ?

Morally or legally it is not the end of the story.

Bean_Counter

apples1 wrote: »

Hi,
We have recently taken a franchise. The employees transferred to us under TUPE regulations. One employee who has a 37.5 hour per week contract has been employed for eight months. He has always worked mon - fri. We need him to work Saturdays (and have a day off in the week instead) as all the other full time staff do.

He doesn't want to work Saturdays and when asked always makes excuses. He has four children, one of whom we are told has downs syndrome and he has also made us aware that his wife is epileptic. Allowances to his working hours are made during the week to allow him to take some of his children to school so he works 9.30 until 6pm whereas other staff vary start/end times between 8.15am & 6pm.

When we ask him to work a Saturday (with at least six weeks notice) he is "already going out" etc. He does not say he can't do it due to the wife/child issue however he does use this as his reason for not being able to adjust start times in the week so we expect that if we put him into consultation to change his hours he would find a way to use these to support his case.

Where do we stand on this? He can legally opt out of Sundays so he's got us on that one but can we enforce the Saturday working. We have a robust business need to do so.

Have a look at this page from acas website. The bit you need is near the bottom.

ceridwen

Just read the ACAS bit - and my interpretation of that is that it would be a breach of contract for you to try and change his hours. Looks - on the face of it - further down (as helpfully pointed out by another bad employer) that you would have a way to weasel around that by imposing a new contract with notice - BUT he could refuse to accept the new contract. You then dismiss him I suppose - he then takes you to court and would hopefully win.

I repeat - please stop harassing this poor man.

Bean_Counter

ceridwen wrote: »

You then dismiss him I suppose - he then takes you to court and would hopefully win.

No chance of him winning in court - he's only been employed eight months.

Apples1, do what you think is best for your business.

ceridwen

Re the Downs Syndrome and Epilepsy that your employee has in his family - I refer you to article in todays Guardian newspaper:

http://www.guardian.co.uk/uk_news/story/0,,2185806,00.html

to do with woman being discriminated against on disability grounds - though it is a member of her family that is disabled (not herself personally). Shall be watching that one with interest.

Certainly - if I were your employee - I would be investigating my rights anyway as a close relative of a disabled person. I would definitely be wondering if I had more rights than some other worker in the same circumstances - but without any disability in the family.

(NB: I was wondering if some other bad employer would "helpfully" point out that your employee has less than 1 years service with you - to which my rejoinder is that there are exceptions to this - and I refer you again to above newspaper article, wondering if that might help your employee prove he is an exception).

Anyway - think of the bad publicity for your business. If you managed to unfairly dismiss this poor man - he could go off to the media and tell all (not forgetting to mention the disability in his family) - and guess who will get the public sympathy - not you. You could find people boycotting your business.

Bean_Counter

ceridwen wrote: »

I would definitely be wondering if I had more rights than some other worker in the same circumstances - but without any disability in the family.

As the parent of a disabled child under the age of eighteen, you have a statutory right to request flexible working hours.

http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10029491

ceridwen

"statutory right... child under 18..."

BINGO. Game, set, match for employee to win.

End of discussion.