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Managing Return To WorkBack

“We have had a member of staff come back from maternity leave in June.  Following a request from her to reduce her hours, her role in the company also changed.  Where do we legally stand if the hours she now works do not suit the needs of the business?  She works Wednesday, Thursday and Friday mornings but our busiest times are Monday and Friday afternoons.  Her hours therefore could cause us issues going forward.  In addition, since her return she has had a bad attitude, complaining that she is doing more work than others and this is affecting morale.”

A change in hours following a flexible working request is a permanent change.  If you need to change her hours now you will ultimately treat it as a variation of terms and conditions, consult with her and seek her consent to enforce the change.

If she refuses to accept the change, and the business cannot continue this status quo (which could be exploring whether you can find alternative employees to carry out the busy periods) then there are two options;

  1. Enforce the change as unilateral change,
  2. Dismiss and seek to re-engage on the new terms.

Both carry risks as with the first it would risk a breach of contract if consent is not given.  If the employee has more than two years’ service, she could resign and claim constructive dismissal.  With the second option, clearly as there is a dismissal then she could not accept the re-engagement and claim unfair dismissal.  Due to the risk therefore, it is best to try to seek the employee’s consent, explaining the problems caused to the business in relation to her working hours against the needs of the business and see if you can obtain consent.

In relation to the bad attitude, this can be addressed either informally or formally.  If you decide to take it as a more formal route then you should follow your disciplinary procedure and if this is the first case where there have been problems with her, and there is no other live warnings on her personnel file, it is likely to result in a first stage warning, i.e. either a verbal warning or a written warning subject to what your policy provides.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.

 

Posted by Sue Robinson on 27/10/2017