Flexible work form request on a variable-hours contract

Irving7

A little bit of background first:

I am a swimming teacher working as a part-time employee at a health club and have been for 7 years. 

I do not have in my contract a specified minimum number of hours of work and my working hours are defined as follows:

Hours of Work
4.1. Your normal hours of work defined in the teaching schedules but these may be varied
by the Company to meet changing business requirements. Hours of work may be
irregular, extended and, in the circumstance of the industry in which the Company
operates, will include weekends. You will be expected to work any such additional
hours as may be necessary in the proper performance of your duties.

4.2. Pursuant to the Working Time Regulations 1998 as amended (“the regulations”) you must not work more than 48 hours a week averaged over a 17-week period. You agree that the working hours limit as defined by the Regulations shall not apply to your employment. For the limit to apply you are obliged to provide the Company with three months prior written notice to that effect and the working hours limit will apply immediately upon the expiry of such notice.

4.3 Your Line Manager will normally issue staff schedules. Shift changes will not be permitted unless referred to and agreed by your Line Manager. Please be punctual as any time loss may be deducted from your pay.

During term time my hours on Monday - Friday, and Sunday, can be seen as somewhat regular. The teaching schedule is made on the approach to a new term and most swimmers want to remain with the same swimming teacher - the term's lessons are usually paid for in advance.

However, during the holiday periods, the company offers crash courses (1-week intensive courses) which are irregular and the demand for these types of lessons can change from week to week. Unfortunately, the person in charge of booking lessons was recently dismissed because of her poor performance and it has resulted in me being out of work and without pay for 6 weeks (less any holiday pay I have accrued).

I, therefore, sought employment elsewhere and I have now agreed to work Saturdays only, for a different employer, starting next term. Not keen on working 7 days a week, I submitted my 4 weeks' notice to discontinue working on Thursdays, for my main employer.

Now onto the main question:

Should I be required to fill out a flexible work form request wherein I can only make one request within a 12-month period and they have the legal right to decline such a request?

Even if I wanted to fill out this form, the way it is worded implies I have fixed hours.

It would seem the "Hours of Work" clause in my contract entitles my employer to all of the benefits a zero-hours contract would provide whilst simultaneously expecting the employee to provide them with the same security as a fixed, permanent employee.

And then there's this clause too:

17. Outside Interests and Non-Soliciting Employees
You will not during the term of your employment be directly or indirectly engaged, concerned or interested in or carry on in any other trade, business, occupation or profession what so ever unless previously cleared by your Line Manager in writing.

My employer has certainly tried to take advantage of the swim teaching team in the past, but this time I am confused.

Savvy_Sue

I think clause 17 means you'd have to have permission from your swimming employer for your other work. It's not an uncommon clause, and while permission shouldn't be unreasonably refused, some employers just don't want people working elsewhere. 

I don't know whether a flexible working request would be appropriate or not, sorry. 

One question is whether they will have problems covering Thursdays ... 

Marcon

Irving7 said:

A little bit of background first:

I am a swimming teacher working as a part-time employee at a health club and have been for 7 years. 

I do not have in my contract a specified minimum number of hours of work and my working hours are defined as follows:

Hours of Work
4.1. Your normal hours of work defined in the teaching schedules but these may be varied
by the Company to meet changing business requirements. Hours of work may be
irregular, extended and, in the circumstance of the industry in which the Company
operates, will include weekends. You will be expected to work any such additional
hours as may be necessary in the proper performance of your duties.

4.2. Pursuant to the Working Time Regulations 1998 as amended (“the regulations”) you must not work more than 48 hours a week averaged over a 17-week period. You agree that the working hours limit as defined by the Regulations shall not apply to your employment. For the limit to apply you are obliged to provide the Company with three months prior written notice to that effect and the working hours limit will apply immediately upon the expiry of such notice.

4.3 Your Line Manager will normally issue staff schedules. Shift changes will not be permitted unless referred to and agreed by your Line Manager. Please be punctual as any time loss may be deducted from your pay.

During term time my hours on Monday - Friday, and Sunday, can be seen as somewhat regular. The teaching schedule is made on the approach to a new term and most swimmers want to remain with the same swimming teacher - the term's lessons are usually paid for in advance.

However, during the holiday periods, the company offers crash courses (1-week intensive courses) which are irregular and the demand for these types of lessons can change from week to week. Unfortunately, the person in charge of booking lessons was recently dismissed because of her poor performance and it has resulted in me being out of work and without pay for 6 weeks (less any holiday pay I have accrued).

I, therefore, sought employment elsewhere and I have now agreed to work Saturdays only, for a different employer, starting next term. Not keen on working 7 days a week, I submitted my 4 weeks' notice to discontinue working on Thursdays, for my main employer.

Now onto the main question:

Should I be required to fill out a flexible work form request wherein I can only make one request within a 12-month period and they have the legal right to decline such a request?

Even if I wanted to fill out this form, the way it is worded implies I have fixed hours.

It would seem the "Hours of Work" clause in my contract entitles my employer to all of the benefits a zero-hours contract would provide whilst simultaneously expecting the employee to provide them with the same security as a fixed, permanent employee.

And then there's this clause too:

17. Outside Interests and Non-Soliciting Employees
You will not during the term of your employment be directly or indirectly engaged, concerned or interested in or carry on in any other trade, business, occupation or profession what so ever unless previously cleared by your Line Manager in writing.

My employer has certainly tried to take advantage of the swim teaching team in the past, but this time I am confused.

Given you don't have fixed hours, and can't do your job from home,  it's hard to see how a flexible working request would be appropriate.

What is clear is that your contract requires you to get clearance from your employer for your Saturdays-only job - and that might not be forthcoming, given you want to limit your availability to your current employer by not working Thursdays (or Saturdays).

The most practical approach is to talk to your employer, preferably face to face, and then record in writing, signed by both sides, what has been agreed. Given your understandable concerns about been out of work and unpaid for 6 weeks, if you're valuable enough to them they might agree to underwrite a particular number of hours, especially for non-term time periods.

Irving7

Thanks for your comments.

Regarding clause 17, that is redundant. To get to where I am currently I had to build up my hours slowly (starting off with only 3 hours a week) and as I have no fixed hours my contract is almost identical to a zero-hours contract.

Acas say on their website:

If someone's on a zero-hours contract

By law (Employment Rights Act 1996), if someone is on a zero-hours contract, their employer must not:

try to stop them working for another employer by putting an exclusivity clause in their contract

Marcon

Irving7 said:

Thanks for your comments.

Regarding clause 17, that is redundant. To get to where I am currently I had to build up my hours slowly (starting off with only 3 hours a week) and as I have no fixed hours my contract is almost identical to a zero-hours contract.

Acas say on their website:

If someone's on a zero-hours contract

By law (Employment Rights Act 1996), if someone is on a zero-hours contract, their employer must not:

try to stop them working for another employer by putting an exclusivity clause in their contract

But you aren't on a zero hours contract and never have been, from what you say. 'Almost identical' isn't the same thing.

Irving7

Marcon said:

Irving7 said:

Thanks for your comments.

Regarding clause 17, that is redundant. To get to where I am currently I had to build up my hours slowly (starting off with only 3 hours a week) and as I have no fixed hours my contract is almost identical to a zero-hours contract.

Acas say on their website:

If someone's on a zero-hours contract

By law (Employment Rights Act 1996), if someone is on a zero-hours contract, their employer must not:

try to stop them working for another employer by putting an exclusivity clause in their contract

But you aren't on a zero hours contract and never have been, from what you say. 'Almost identical' isn't the same thing.

.......

From what I can see looking at the legislation surrounding employment there is no difference between a zero-hours contract and a variable-hour contract whereby hours are neither specified, nor guaranteed. 

@Marcon you seem to know more than me regarding employment law. Please would you be so kind as to highlight what the legal difference is between my contract and a zero-hours contract?

Marcon

Irving7 said:

Marcon said:

Irving7 said:

Thanks for your comments.

Regarding clause 17, that is redundant. To get to where I am currently I had to build up my hours slowly (starting off with only 3 hours a week) and as I have no fixed hours my contract is almost identical to a zero-hours contract.

Acas say on their website:

If someone's on a zero-hours contract

By law (Employment Rights Act 1996), if someone is on a zero-hours contract, their employer must not:

try to stop them working for another employer by putting an exclusivity clause in their contract

But you aren't on a zero hours contract and never have been, from what you say. 'Almost identical' isn't the same thing.

.......

From what I can see looking at the legislation surrounding employment there is no difference between a zero-hours contract and a variable-hour contract whereby hours are neither specified, nor guaranteed. 

@Marcon you seem to know more than me regarding employment law. Please would you be so kind as to highlight what the legal difference is between my contract and a zero-hours contract?

From what you've quoted, you don't have the right to turn down work in the way a zero hours employee would - and having an exclusivity clause lends credence to the fact it is not a zero hours contract.

Irving7

Marcon said:

Irving7 said:

Marcon said:

Irving7 said:

Thanks for your comments.

Regarding clause 17, that is redundant. To get to where I am currently I had to build up my hours slowly (starting off with only 3 hours a week) and as I have no fixed hours my contract is almost identical to a zero-hours contract.

Acas say on their website:

If someone's on a zero-hours contract

By law (Employment Rights Act 1996), if someone is on a zero-hours contract, their employer must not:

try to stop them working for another employer by putting an exclusivity clause in their contract

But you aren't on a zero hours contract and never have been, from what you say. 'Almost identical' isn't the same thing.

.......

From what I can see looking at the legislation surrounding employment there is no difference between a zero-hours contract and a variable-hour contract whereby hours are neither specified, nor guaranteed. 

@Marcon you seem to know more than me regarding employment law. Please would you be so kind as to highlight what the legal difference is between my contract and a zero-hours contract?

From what you've quoted, you don't have the right to turn down work in the way a zero hours employee would - and having an exclusivity clause lends credence to the fact it is not a zero hours contract.

Again, I do not believe my contract is compliant with UK law... 

The contract is written in such a way as to suggest my employer has all of the benefits of a zero-hours contract (unlimited flexibility - no requirement to provide hours or pay) combined with all of the benefits of a full-time permanent contract (100% commitment from the employee to the company), without any of the responsibility.

There is nothing in the employment law literature that supports this.

During (school) holiday periods there can sometimes be no work and no pay e.g. 6 weeks in my case -  (in effect, a zero-hours contract, whereby work hours and salary drops to zero).

BrassicWoman

It's in the contract
You signed the contract
The law does not say things have to be fair
You're only going to find out if it is legally binding by going to court
That seems like a massive amount of hassle compared to having a chat.

Marcon

Irving7 said:

Marcon said:

Irving7 said:

Marcon said:

Irving7 said:

Thanks for your comments.

Regarding clause 17, that is redundant. To get to where I am currently I had to build up my hours slowly (starting off with only 3 hours a week) and as I have no fixed hours my contract is almost identical to a zero-hours contract.

Acas say on their website:

If someone's on a zero-hours contract

By law (Employment Rights Act 1996), if someone is on a zero-hours contract, their employer must not:

try to stop them working for another employer by putting an exclusivity clause in their contract

But you aren't on a zero hours contract and never have been, from what you say. 'Almost identical' isn't the same thing.

.......

From what I can see looking at the legislation surrounding employment there is no difference between a zero-hours contract and a variable-hour contract whereby hours are neither specified, nor guaranteed. 

@Marcon you seem to know more than me regarding employment law. Please would you be so kind as to highlight what the legal difference is between my contract and a zero-hours contract?

From what you've quoted, you don't have the right to turn down work in the way a zero hours employee would - and having an exclusivity clause lends credence to the fact it is not a zero hours contract.

Again, I do not believe my contract is compliant with UK law... 

The contract is written in such a way as to suggest my employer has all of the benefits of a zero-hours contract (unlimited flexibility - no requirement to provide hours or pay) combined with all of the benefits of a full-time permanent contract (100% commitment from the employee to the company), without any of the responsibility.

There is nothing in the employment law literature that supports this.

During (school) holiday periods there can sometimes be no work and no pay e.g. 6 weeks in my case -  (in effect, a zero-hours contract, whereby work hours and salary drops to zero).

But you still signed it...

Irving7

An employment contract, whether signed or not, does not supersede the Employment Rights Act.

In addition, and as you can see, the contract I signed does not explicitly specify working hours, but it does allow for variation.
By default of hours being 'varied', I am surely already considered a flexible employee. How can a flexible employee be asked to fill out a request form to work flexibly? It doesn't make any sense...

Even the wording in the form is suggestive of fixed-hour employees:

I would like to apply to work a flexible working pattern that is different to the current hours of work outlined in my terms and conditions of employment.  I am making this application under my rights provided under section 80F of the Employment Rights Act 1996.

My current hours of work are not outlined in my terms and conditions.