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Feel I'm being forced out.

 
Feel I'm being forced out.

Sorry for the long post but I wanted to put in as much information as possible.

I’ve been working for my employer for 7 years and have been employed on a permanent full time 5 day per week contract. My contract does not stipulate any set hours although I work a set shift rota. We provide a 24/7 service 365 days per year in the public sector.

My health is not great – I’ve suffered from depression/stress/anxiety for over 20 years & have a few other health problems. I’ve been off quite a lot in the last 4 years due to my health & as a result have been seeing our Occupational Health doctor almost monthly for the past 4 years.

Two years ago I returned to work after being off long term ill, on a gradual basis, building up my days over a few months. OH doctor informed my bosses that I was unfit to work any more than 4 days per week, which I have been doing for the past 2 years. My bosses were very understanding and I was allowed to take one day per week on unpaid leave.

This summer I had to have urgent, pretty major surgery and am just returning to work later this month. I have had no contact from my immediate boss since July although I have kept her informed by email of my progress, though she has never replied.

Last month I was called in to an informal meeting with her superior who informed me that I could no longer continue with the 4 day per week agreement we had and they wished me to return to work as soon as possible on a 5 day week. I said that due to my health I wasn’t happy with the idea of returning to a 5 day week & said I was willing to cut my contract permanently to a 4 day week. He said it would have to be discussed with OH doctor.

This week I attended a formal meeting with this manager and a member of HR. He showed me a letter from my OH doctor which stated in his opinion I was unable to work more than 3 or 4 shifts per week. They said they were agreeable for me to have a 4 day per week permanent contract but if this was the case I would be taken off the shift rota.

I’m really not happy about this. It means I would basically be a dogsbody, covering for sick leave or annual leave on very short notice and would only know my next weeks shift a week or two in advance – and even that could change if someone goes sick.

Very recently a colleague of mine went from a full time contract to a 3 day per week contract and wasn’t removed from the shift rota and another colleague works a 3 day week also on the rota.

It’s this shift work which makes up my pay – our basic pay isn’t great. On the rota we only have one weekend in 7 off, which I never minded and we do a lot of late shifts and nightshift. If I’m moved to these new hours I’ll lose most of my shift allowance as it’s unlikely I’ll get much weekend or bank holiday work. If no shifts need covered I’ll be working 9 -5 weekdays.

Personally I feel especially with my immediate boss’s attitude lately that I’m being pushed out. She tried to get me redeployed to a different section earlier this year but I refused. This is her next move, relegating me to the bottom of the staff structure. When a new member of staff starts its probable they start off doing similar duties to mine until a place becomes available on the rota for them. There are other part time staff who have set shifts each week.

In my opinion this is leading to constructive dismissal as I feel I have no choice but to resign. Apart from the drop in pay I’ll not know where I am from one week to the next & its technically a demotion. Legally though I doubt I’ll have a case as I cannot prove anything. The whole situation is not helping me health wise and I’ve got myself worked up into a bit of a state since the meeting.

Can anyone give me any help or advice here?

Many thanks!

Hippychick

11/11/2007 02:56:52

I am going to recommend that you get legal advice on your position. There is a very good chance that you may have some protection under the DDA, but, and I have to stress this, the DDA is not foolproof nor without catches. For example, your employer may say that they cannot take on any more capacity than they already have on part-time staff on the shift rota, and this is the best that they can offer you. How well that would stand up as an argument would depend on lots of things, and it would be difficult for any of us to give you the detailed advice on such specific circumstances - you would end up spending half of your life typing posts! There may be specific reasons attached to your firends as to why they must be offered more flexible working, like family friendly policies, which do not include you, and this may be why they have been given different working patterns. Because your contract does not guarantee you the shift patterns of your choice, you will have to prove that (a) you are being treated less favourably than others for no good reason and (b) that you are being discriminated against for something which is protected at law, such as sex, or disability. You need both, not one or the other, to have a case.

Do not resign. Constructive dismissal is always very hard to prove, and your position is stronger whilst you are still in employment, so I would get legal advice before you do anything drastic which might ruin your chances of getting what you want or making a case.

shikahra

11/11/2007 13:15:38

Thanks Shikahra.

I contacted my union rep today and he too thinks I may be able to use DDA. He asked me to set up a meeting with the manager for the three of us to discuss it but my manager is refusing a meeting and wouldn't even talk to me over the phone! Surely he can't refuse a meeting, is this legal?

I contacted my OH doctor and he said he would write to the manager to say it is better healthwise for me to stay on the set shifts I have. He also advised me not to go the legal advice route but didn't say why.

Hippychick

12/11/2007 23:57:26

Well I am so used to nobody being in a union that I never thought of it! They will provide all the legal advice you need, so no, you don't need a solicitor. Although I doubt that is why OH said it! The best OH people will do what is best for you, but remember that they are paid by the employer! So not all of them have your interests at heart. No, your manager can't refuse to talk to the union - just tell your union what happened and leave it to them.

shikahra

13/11/2007 09:47:21

Thanks Shikahra.

I've left it with the union rep & am waiting for him to get back to me.

Just another quick point I had, looking at this from another angle. My manager, when he originally allowed me to work a 4 day week taking a day unpaid and remaining on my shift, was in effect "making reasonable adjustments" which under employment law should be looked at in cases of disability. Could I claim he is now going back on this? Does an employer have the right to remove or change "reasonable adjustments"?

Hippychick

13/11/2007 15:03:29

Yes, they can. "reasonable adjustments" could be a temporary measure, say, for example, if someone had a condition which got better, or which changed. So you wouldn't expect a car parking space next to the door normally, but because you had impaired mobility for five months, then recovered, you could have one for the five months. Also, it's down to that awkward word "reasonable". There is no definition in law as to what this means. And what is "reasonable" may change due to circumstances in a business. So, for example, last year they may have said that they would allow part-time working on shifts, but they then found that this was hard to manage as part-time workers then didn't get the degree of supervision or training or something, which meant they weren't up to date with new practices, so for business reasons they could make a change and not allow part-timers to work on a shift rota. Please bear in mind these are JUST EXAMPLES, not specific to your circumstances, so please don't start picking holes in them!!!! So simply saying that you will make a resonable adjustment does not imply that you are accepting that a person is covered by the DDA, and even if you do, there can be situations where an adjustment becomes "not-reasonable".

shikahra

13/11/2007 16:08:05

I was recently involved in a meeting (as an advisor on some technical issues) between a senior member of staff who wanted to change to part-time work because of his health, and the management and HR.

I'll spare you the details, as the basics had some key differences with your current position, but I can give you an insight into how the company/HR will consider any request.

The staff member concerned thought that he had a very good case, but management argued that his was a full time role, and could not be done on a part time basis, and they could not reasonably cover for his non-work days as it was a specialist job, so not one where they could easily find a part timer to fit in around his work patterns.

The request was actually settled based on his having already resigned - he was trying to withdraw this and come back on a part time basis - so the company was not obliged to do anything for him, and in the end got him to agree to their very limited terms. Off the record, HR told me that if he had instead approached them with a letter from his doctor stating that he could not work full time then they would have had to seriously consider his request, and for fear of anti-disability discrimination (especially as his health problem was caused by work-related stress) would have undoubtedly agreed to his request, and bent over backwards to be seen to help him.

Your support from the union and your OH specialist are all good, but the employer will base their decision mainly on how switching you to a part-time role will affect the business. You therefore need to build a case that you can remain on the shift team without causing any difficulties - present the company with a solution, not a problem. After all, they already have a solution to allow you to work part time, it's just not one that you like.

I suspect that this will largely rely on your work patterns - do you work in fixed teams, all on the same shift pattern where your absence will leave them understaffed, or all on individual patterns where cover could easily be arranged? Are there other part timers, or job shares, or any other flexible work practices that could be used to accomodate your request? Are they large teams, who can cover for sickness and holiday at short notice in the normal course of events?

The fact that you have already been doing the job part time is a double edged sword - you may have demonstrated that you can do it perfectly well, but it also gives the company a chance to say that they've tried it and it has caused problems. So take a look at the situation, and present an argument that they will have difficulty in turning down, or at least one that you can negotiate on.

monkey steve

14/11/2007 11:18:41