Flexi hours - What is reasonable?

[skonk]

My girlfriend works on 18+hours a week, flexi. She does, on average, 39 hours a week. Now, whenever we have an appointment for the doctors, etc. when she goes in and tells them, and she gives them the appointment card, they refuse to let her have the time off. When she says she's 18+ flexi, they said to her, we decide what hours you do, not you. You have to be available at a minutes notice. When she said that it isn't fair, she was told that she shouldn't be making arrangements for appointments, etc. she should be available for work at all times.

 

I find this totally unacceptable. I mean, she gives them 2-3 weeks notice, and they still won't let her have the time off. What are her rights concerning flexi hours? She has asked for a copy of her contract as she wasn;t given one, and three times has been told she doesn't need a copy, as she's flexi!! I find that hilarious! They make the rules up as they go along. My girlfriend has already made an anonymous complaint against the shop about the 11 hour rest rule. She sometimes is in work til 10:30-11pm, then back in for 7am, which is against the law. This applies to the majority of the staff as well. A case of managers living in cloud cuckoo land when it comes to the rules...

[Sidewinder]

Your GF has a legal right to a statement of basic terms and conditions outlining hours of work, pay and other fundamental parts of her contract. Legally this should have been provided after not more than 2 months in the job. She is right to insist on being provided with a copy - being flex-time does not allow the employer to dodge his legal obligation. I would also suspect that due to the loose nature of her working hours that she is missing out on holiday entitlement - she should currently be paid for 4.8 x her normal working hours leave each year (which can include Bank Holidays if these are not worked). If her working hours are erratic then she should be given holiday based on the previous 12 weeks work.

 

Insofar as medical appointments are concerned, there is no statutory right to be given time off for these (unless during pregnancy or under certain conditions of disability), however employers generally understand that they are sometimes unavoidable and by nature unpredictable. It would be considered extremely unreasonable not to allow the employee at least unpaid time off to attend them - especially where the appointment is made to cause the minimum disruption to the employer's business (maybe in arranging the appointment for a recognised quiet period of at the beginning/end of a shift, or as an overrun to a lunch break. Your dilemma here is that in the absence of a statutory right, the issue of time off for such appointments would rely on a contractual term or the employer's goodwill. What happens when your girlfriend is sick, I wonder? Does the employer similarly disallow this absence and drag her into work? What would happen if she reported sick in order to attend an appointment - there is, after all no need to provide evidence for such a short term absence?

 

Your GF has no specific rights regarding flexi-hours other than those governed by the Working Time Directive in that she may not work more than 48 hours per week and must be afforded the correct periods of rest and annual leave. In this context, the term 'flexi' means little, for whilst she is (verbally at this stage) contracted to work 18+ hours per week, she has in fact habitually worked for longer without protest and the element of 'custom and practice' comes into play. If your argument is that she could enforce the contract and work fewer hours in order to attend appointments then how would she feel if the employer now chose to revert her to 18 hours a week?

 

Enforcement of the 11 hour rest rule is sometimes difficult where the nature of the business (for example in retail work) makes it difficult to satisfy this condition. The condition of compensatory rest is then taken into account whereby the employee has the equivalent time off elsewhere in the working week so it would generally be considered adequate to have more than the statutory 24 hours free of work in each week to compensate for late finishes and early starts. She should not though be forced to work late and start early on every working day.

 

All things considered, I feel that your only course of action at this stage is to raise a formal grievance outlining your concern that despite having asked repeatedly you have not been provided with a written statement of particulars forming the basis of a contract of employment, contrary to your legal right. You are also concerned that in the absence of such a written contract there seems to be no guidance as to when it is appropriate to make appointments for medical reasons, and you feel that the employer's statement that one should be available for work at a minute's notice is unreasonable given that no specific contractual term has ever been issued nor agreed to.

[skonk]

Thanks sidewinder. I should als o state that, my GF does arrange her appointments for her days off, when she gets her rota. Work will phone her the day before, or in the morning on her day off and ask her to come in, she says no, as she has an appointment, or has made arrangemtns, as it is her day off, she is then threatened with a disciplinary for not coming in. Her arguement is, she arranges appointments, family visits, etc. on her days off, and is willing to change them, as long as she is given enough days notice, not a phone call an hour before her appointment.

 

She has no objection to work 30+ hours, and many a time she does her normal 18 hours. She just objects to being told she should not maek any arrangemtns in her social life, as she may be needed in work.

 

On the question of being called in when she's sick, she was actually taken from work in an ambulance the other week with bad chest pains and couldn't breathe. Turned out she had flu and a chest infection. The manageress phoned her that night, after i had called and said she won't be in for a week as the doctor had given her a weeks sick note for influenza, and told her she will be investigated as to her time off when she returns to work, and will recieve a discplinary for being off for the 7th time in 18 months!!

 

What's even worse is, my GF has returned to work, and the manageress is now off with flu for a week, and three other members of staff have been off with flu as well. Her discplinary has been put back til the manageress returns, and my gf has said she will be signing nothing and totally disagree with the disciplinary and will appeal against it.

 

The manageress ahs been off 24 times in the last ten months, most of them were one day at a time, always after a staff party or a night out, whereas my GF doesn't drink, had four days off with a sick note for being ill, one day off as we were involved in a car crash, and one day when she knocked a young girl over who ran into the road. She sees it as highly unfair she is getting a disciplinary for having a week off with a sick note, whereas the manageress will not even get a talking to by head office for absences. Can she use this in her disciplinary at all? The fact other members of staff are seemed to be allowed so much time off without sicknotes, whereas she gets a discplinary for an official week off sick/

[Sidewinder]

Sounds like a fantastic place to work!

 

So if I have this correct, she is given a rota and arranges to do something on her scheduled day off. The employer then changes their mind and threatens a disciplinary for refusing? There is not a chance that they could dismiss her, or take any disciplinary action. For them to do so she would have to have a greed to a contractual term which accepted that she would drop everything when asked to do so.

 

Similarly, the threat of disciplinary action for taking time off sick. Disciplinary action results from a breach of contract - where is it written and agreed that she will not take time off sick? Against what is it measured that she has been off for an excessive number of occasions? If the employer were to take action against her they would have to demonstrate (before a Tribunal if neccessary) that their action was reasonable in the circumstances and in line with action taken against other employees. Whilst it is fair to say that an employer can dismiss for reasons of absence (or indeed whilst absent), they must do so only in line with accepted policy and having followed the correct procedure.

 

I would suggest that your GF writes down instances and dates of absence on the part of others, including the manageress. If your GF were to be dismissed and bring an Unfair Dismissal case, the fact that her absences were fewer than others who had not received similar treatment would be highly relevant, as would the lack of any form of contract and lack of a sickness and absence policy.

 

If it comes to a disciplinary (and make sure that this in itself is conducted correctly - written invitation with reasons for the hearing provided, right to be accompanied, written details of outcome and right to appeal) your GF is perfectly entitled to ask:-

 

Why she is the subject of a disciplinary hearing?

 

What measurement has been used to determine that her absences are 'excessive'?

 

Where the Company's sickness and absence policies, and disciplinary procedures are published? Also why neither these nor a written contract have been provided despite having asked for them?

 

What action is to be taken against other staff with similar or greater numbers of absence?

 

If anything at all results from this, it should at the most be that future absences will be monitored and assessed for improvement, and that if no improvement is seen then the matter may be escalated. A similar measurement of absence sould then be applied across the entire workforce.

 

I would still suggest that a grievance would be appropriate for the reasons outlined earlier, and add the matter of unfair treatment over this instance of sickness.

[skonk]

Thanks for the reply, sidewinder. Yes, it's a marvellous place! Not sure if I can name it here though. She is looking for a new job, but in the current climate, she's just going to grin and bear it. The manageress is the problem. The deputy manageress is really good. She actually has a good understanding of the staff and helps them out if they need time off, etc. Grievances have been made in the form of letters to head office about the manageress, but they mysteriously vanish. Everyone knows the manageress has many friends in head office, all who deal with incoming mail.

 

I've told my GF that if anything happens, either a disciplinary or she wishes to start a grievance against the manageress, I will come on here and get some of the excellent advice given. Say, for instance, she sent a letter of grievance, would she be better printing two copies, one for herself, and sending their copy by special delivery? That way, if there was some mysterious mail missing by her friends at head office, we would have proof it was sent?

 

I think my gf is secretly wanting a disciplinary, as she knows they don't have a leg to stand on. Her manageress doesn't believe that asthma is a one day illness, and if anyone is off with it, they are making it up. My gf works with animals, and the asthma is aggravated by it. I had to get my gf to go to the doctors and get a handwritten letter to state that she has asthma and it can be a one day illness. Also, we've decided that if she does have to take one day off through a bad asthma attack, she's going to the doctors for a one day sick note. As petty as it seems, I think she's best doing everything above board and provide enough evidence to support her if she gets a discplinary.

Edited January 8, 2009 by skonk

[Sidewinder]

If a letter is important enough then it always warrants a signed for delivery - I usually find that Recorded is sufficient.

 

As I said before, sickness is sufficient reason to be disciplined and even dismissed, but not without clear guidance and policy. In those circumstances I think that you would have ample ammunition to knock a dirty great hole in anything which they throw at your GF.

[68904]

Tell her not to answer the phone. They will always get some other to do the job.

[skonk]

They actually phoned her twice this morning. Once at 7am, then 7:30am!! She only saw the missed calls when we woke up, as her phone is onsilent at night. Whenever she doesn't answer the phone, when she next goes in, she gets taken to the office and told that in future, you have to answer the phone, as we need you in. She got home from work last night at 23:45, after being in from 8pm, so I think she's slightly entitled to a sleep in and a day off.

[letterman]

If it is a large company she works for with a centralised HR department at head office I would raise a grievance directly with HR and justify bypassing local management on the basis of their unfair treatment. You often find that it is not a case of an unreasonable company its unreasonable local management.

[patdavies]

They actually phoned her twice this morning. Once at 7am, then 7:30am!! She only saw the missed calls when we woke up, as her phone is onsilent at night. Whenever she doesn't answer the phone, when she next goes in, she gets taken to the office and told that in future, you have to answer the phone, as we need you in.

 

Unless they pay for it, they are totally wrong.

 

Change the number and refuse to divulge the new number unless they are paying the bill. If they insist on an emergency contact number (in case of accident, for example) then give them your mobile number and stress that it is for emergencies only and that she cannot be contacted via it.