Opt-out of Sunday working

[Eggbound]

Due to stress in my job I've opted out of Sunday working in retail, because I can. My employer has acknowledged my intention to opt-out of Sunday working. I know they are not obliged to find me the 'lost' hours during the week, I know I'll lose money. This means for 2 Sundays every month I'll lose 8hrs work. The other 2 Sundays I would not ordinarily be rostered to work anyway. There are currently 2 of us working the following pattern; when I'm in they're off and vice-versa.

		Currently	Company Proposal
	Sat	8hrs	6.5
Wk 1	Sun	8hrs	0
	Mon	off	0
	Tue	off	0
	Weds	12hr	12
	Thu	12hr	12
	Fri	6 hrs split/off	6
	Sat	off	6.5
		38 HRS TOTAL
Wk2	Sun	off	0
	Mon	12	12
	Tue	12	12
	Wed	off	0
	Thur	off	0
	Fri	off/6 hrs split	6
	Sat	8 hrs	6.5
		38 HRS TOTAL
	Sun	8 hrs	0
	And so on

My employer has replied saying:

"As you are opting out of working on a Sunday and your contract states you must work either a Saturday or Sunday each weekend (it doesn't by the way) the company will require you to work Saturdays. However the company has taken into consideration you may not want to work all day every Saturday and on this basis propose you do a split shift on a Saturday working either 7am-1.30 or 1.30-8pm. In order to ensure you work your full time contracted hours." (of 38 per week/152 per month)

NOW...currently the shop is only open 9-5pm Sat/Sun not 7am-8pm.

My opt-out proposal would have me working 136 hrs per month. Their post-opt out proposal would have me in 146 hrs.

So in real terms, I'd only be 'losing' 6 hrs total per month (thereby defeating the whole object of me opting out) and not only would I have to work every Saturday but also start/finish 2hrs earlier/later than at present.

I see this as being 'penalised' for opting out of Sundays.

What do you think?

[Eloise01]

Re: Opt-out of Sunday working

You did not apply to reduce your contracted hours of work. You exercised your right to opt out of Sunday working. They are therefore entitled to expect you to work your contracted hours of 152 over the other days of work. It would appear that they are offering you the option of reducing your hours in this way - you should clarify with them that this is actually what they are proposing. If what you actually wabted to do was to reduce your working hours, then you should also have asked them for this specifically as a variation of contract, which you appear not to have done. You appear to have simply assumed that they would drop the Sunday and reduce your hours accordingly. The "object" of opting out of Sunday working is not to reduce the working week / month! That was never the object of the opt out clause!

Unless your "contract" (which is not just the paperwork you have -it also includes company policy and other things, which may stipulate that working a weekend day is required anyway) specifically states that your working week is Monday to Friday, then the company may distribute the hours as they wish and according to their business need across the other six days, within the limitations of the Working Time Directive. There is no right to opt out of weekend working / Saturday working / or working any other day of the week. It would appear that their business need is to have people working at weekends (which makes sense since weekends are the busiest in the retail environment) so it is not unreasonable to expect you to work Saturday. If the shop is not currentlu open until 8pm on a Saturday (which doesn't mean it may not open until 8pm in the future) that is their problem to resolve - you would have to ask them about this, although I imagine that there is work that can still be done when a shop is closed.

I think this is a valuable lesson in observing Chinese proverbs. Be careful what you wish for, because you might get it. If you wish to reduce your hours of work then you must ask specifically for them to consider a variation of contract on this basis - but you still do not have the right to determine which days or what hours that may involve working. And there is no absolute right that says that they must agree to a request to vary the contractual terms.

[wales01man]

Re: Opt-out of Sunday working

Eloise01
Well written you wrote what i wanted to say but politely,a contract of employment works for both sides like any contract its there to protect both sides in clearly set out terms as we read so often on here employers try to change things and are prevented from, and advice seems to be talk about it a compomise can nearly always be reached

[Eloise01]

Re: Opt-out of Sunday working

True, but compromise may not be on the agenda in this case. It is difficult to tell what the agenda may now be because there is history. The employer may be genuinely being considered in their approach. Or they may now be joining the OP in nit picking! When this happens, employers are usually better at it! There are specific dangers in asking for a variation in contract. Because even if the employer agrees, that doesn't mean that they must agree to what the OP wants. The OP may want to work a few less hours each month because they have calculated that as the loss they can manage. But the employer can counter with even fewer hours, because their business need is to cover Xx shifts and to do that they would need to employ someone else to make up the hours, and for any one of a million reasons, that isn't feasible. Or, maybe this shop can't accommodate such a change but another one that happens to be 20 miles away can, coincidentally.

The OP needs to be really clear about what they want and what can happen as a result. They've already made one fundamental error in thinking that asking for one thing means they get something else. That didn't work. They need to be much more careful about what they next ask for, or they might get that too!

[Eloise01]

Re: Opt-out of Sunday working

Oh, and another thought OP. Have you considered for one minute what the implications of having less weekend hours/ working hours when the shop is open will have on your sales targets? Which if I recall correctly are based on hours worked - not days worked or times worked. You've already had a warning on targets not reached. And the more I think about it, the more it occurs to me that this could be a very clever nit pick on the part of your employer. Perhaps I am giving them too much credit, but then, I am not betting my employment on it.

[Eggbound]

Re: Opt-out of Sunday working

Hi

although I imagine that there is work that can still be done when a shop is closed

No, there is none.

The OP may want to work a few less hours each month because they have calculated that as the loss they can manage

I want to work a few less hours because a) the job and its attendant politics is not helping my mental impairment and at this rate I'll end up back in hospital b) I also have to care for an ageing disabled relative who was diagnosed with cancer at xmas.

sales targets? Which if I recall correctly are based on hours worked - not days worked or times worked.

Apparently, if we work less hours our individual targets will be reduced accordingly...until they change the goalposts again.

In addition, it will mean them having to re-negotiate hours etc with my co-worker and he can be more bolshy that me. He won't want to work extended opening hours, when there's no need. In fact thus far, I've been the most accommodating when it comes to the rota. I work Saturdays now, it doesn't bother me 9-5 every other week. So much for my 'contracted hours', what they're proposing doesn't add up to 152 anyway. There's no business need for the change, so yes they're being bloody minded. Anyway, they'll be having to nit pick at more than me shortly.
And with that I shall bid you goodnight...

[enaid]

Re: Opt-out of Sunday working

As a carer you have certain employment rights.

http://www.carers.org/help-directory...exible-working

[Eloise01]

Re: Opt-out of Sunday working

Hi No, there is none.
I want to work a few less hours because a) the job and its attendant politics is not helping my mental impairment and at this rate I'll end up back in hospital b) I also have to care for an ageing disabled relative who was diagnosed with cancer at xmas.

Apparently, if we work less hours our individual targets will be reduced accordingly...until they change the goalposts again.

In addition, it will mean them having to re-negotiate hours etc with my co-worker and he can be more bolshy that me. He won't want to work extended opening hours, when there's no need. In fact thus far, I've been the most accommodating when it comes to the rota. I work Saturdays now, it doesn't bother me 9-5 every other week. So much for my 'contracted hours', what they're proposing doesn't add up to 152 anyway. There's no business need for the change, so yes they're being bloody minded. Anyway, they'll be having to nit pick at more than me shortly.
And with that I shall bid you goodnight...

I fully understand that you wanted to reduce your hours now. But that is not what you asked the employer for. You have constantly said in your posts that you were telling the employer that you opted out of Sunday working "because you can" - not because you wanted to reduce your hours of work. If you had told us that, any one of several people could have told you that wasn't what the Sunday opt-out did! You are now set on blaming the employer for not delivering an outcome that you wanted, when that was not the outcome that you asked for! You made a mistake. You assumed something was the case when it wasn't. So if they have made a mistake in adding up the hours in their proposal, then they are not alone in making mistakes here. Point out that it doesn't add up to your contractual hours and they will amend the poposal back up to ensure that you are working 152 hours. Not everything has to be a war.

It may not "bother" you that you have to work every other Saturday. But they are proposing that you now work every Saturday and unless you are contracted to work your hours between Monday and Friday, they are well within their legal rights to insist that you do. Yes, your request to opt-out also has an effect on the working hours of your co-worker, and if they now have to work every Sunday then they may be unimpressed with the idea of having to work all weekend or every Sunday - this is not just about you, and you simply cannot have everything that you want because you want it.

It is not up to you to decide what a business justification is. And if the employer wishes to extend their opening hours of the shop or create work that can be done whilst the shop is closed for you to do, then that is also their business and not yours. If they are proposing that you work to 8pm every other Saturday, then furnishing you with work is their problem and not yours.

If you wish to reduce your working hours then that is an entirely seperate and different request, and it is a right to request it. It is not a right to get what you request. For the sake of clarity, so that you do not make another mistake, the right to request flexible working can be refused by an employer for business reasons. This can result in one of two situations. One is that they simply refuse it. The other is that they counter your proposals. You cannot simply dictate that you should reduce your hours by XX hours because that is what you can afford, nor can you dictate on what days you can or will work. If that leaves them without cover and without the ability to create a new position to cover the reducution in hours (which your proposed 16 hours per month reduction is likely to result in) then they can come back and propose further reductions in hours to meet their business justification for a new position bacsed on your request. If you then refuse, then so may they. And this still does not give you the right to dictate what days you will work, with the exception of your already exercised opt out of Sunday working. It does not matter how good your reasons are for requesting the changes - the determining factor is their business need and not your personal needs. That is the law. If they refuse then you may make a tribunal claim - but do not for one instance hold your breath on winning a tribunal based on your arguing that their business needs are not their business needs. A tribunal has no jurisdiction to tell an employer what their business needs are or to argue that their business needs are not what they say they are. You would have to evidence that their refusal was based solely on discriminatory grounds, and that will be exceedingly hard to do when their defence will be business grounds, and a refusal, on its own, is not evidence of discrimination.

[wales01man]

Re: Opt-out of Sunday working

Wow Eloise01 your are a straight talker i think you sum up the situation very well a business must use its workforce to its advantage remembering that if one employee opts out of sunday working someone else loses out

[Eloise01]

Re: Opt-out of Sunday working

Wow Eloise01 your are a straight talker i think you sum up the situation very well a business must use its workforce to its advantage remembering that if one employee opts out of sunday working someone else loses out

I think it is necessary to be as clear as possible because whilst I have a great deal of sympathy for Eggbound, the law doesn't, and he is being careless. Careless gets you unemployed. He asked for an opt out thinking it did something it did not. He never once thought to ask here about it, and the only explanation he ever gave was "because he could " so there was no way anyone could have warned him that it wasn't what he thought it was.

And I haven't made a big deal about it, but there are other signs of carelessness. On one thread he said he was formerly a member of UNISON, on another it was USDAW. OK nothing relevant and not a big deal. But in one place he says he is the only person disciplined for failing to meet targets; in another he says he is one of only a few people disciplined; in another he admits that he doesn't really know and his facts are based on talking to a couple of people! That does matter. It matters a lot to people trying to give correct advice based on incorrect or misleading information. He also says in one place that he has been disciplined twice; in another that the outcome of the first hearing was not disciplinary and he was just told to improve - so I am not seeing two disciplinaries based on the latter information, only one.

I don't think Eggbound is trying to mislead. I think he is being subjective and that is leading him to be careless. But that carelessness could lead him to get advice that will be dangerously wrong, and if he then follows it thinking it is right... well the outcome may not be as harmless as finding out that opting out doesn't reduce your working hours.

[Eggbound]

Re: Opt-out of Sunday working

And I haven't made a big deal about it, but there are other signs of carelessness. On one thread he said he was formerly a member of UNISON, on another it was USDAW.

I didnt type UNISON so I've no idea why it says that! I was in USDAW, TBH I don't even know what UNISON stands for.

OK nothing relevant and not a big deal. But in one place he says he is the only person disciplined for failing to meet targets; in another he says he is one of only a few people disciplined; in another he admits that he doesn't really know and his facts are based on talking to a couple of people!

I agree, that people don't advertise the fact they've had a disciplinary, so facts are coming to light.

That does matter. It matters a lot to people trying to give correct advice based on incorrect or misleading information. He also says in one place that he has been disciplined twice; in another that the outcome of the first hearing was not disciplinary and he was just told to improve - so I am not seeing two disciplinaries based on the latter information, only one.

It's semantics, in my mind I've had 2 disciplinaries. Perhaps for clarification I should've said 'hearing'. Nevertheless they're both on record. If the 1st one was a "non-disciplinary" then they surely had no right to re-hash in the 2nd, points raised in the first.

I don't think Eggbound is trying to mislead..

Absolutely not, I really appreciate the advice. Perhaps this is indicative of my mental state lol I've got so much crp churning in my head.

I think he is being subjective and that is leading him to be careless. But that carelessness could lead him to get advice that will be dangerously wrong, and if he then follows it thinking it is right... well the outcome may not be as harmless as finding out that opting out doesn't reduce your working hours.

It's a good job I have another string to my bow to fall back on...anyway I shall draw a line for now, get on with my job and see what develops over the next few weeks.
Enaid- I don't qualify for any benefits and I don't live with my relative but will ask my employer if they can make some allowances.

[Eloise01]

Re: Opt-out of Sunday working

Eggbound …with the best will in the world, please don't do anything else without taking advice. You don't have to listen to us. Try a lawyer. But please don't think up any more clever strategies without getting advice. Advice after the fact is never as good as advice before it. I was reminded of a story - a true story - back on an earlier thread. That story has haunted me since I read your post yesterday. For two days now. Because I tried to stop someone else doing something foolish and it didn't "take". And although the stories are different, there are parallels.

She didn't work in retail. Very different sort of work, very large employer. And she was disciplined for something. Cut to the chase, she did it, but it wasn't really serious. Something that she could change and never be in that situation again. She promptly went off sick, stating - despite being told not to - that she was sick because she'd been disciplined. The employer heard the appeal, and although she wasn't cleared - remember, she did it. - they reduced the sanction. I think more because it wasn't serious, it could be fixed and they wanted to resolve the situation and get her back to work.

She refused the outcome again. Even though she had nowhere to go. It simply wasn't fair she'd been disciplined for something she did - even though she admitted it! And by the way, her defence was that everyone did it and they weren't being disciplined. She stayed off sick because she'd been disciplined. Eight weeks. Then she wanted to go back because she'd run out of sick pay. The employer insisted on an occupational health assessment. They agreed with her - she was sick solely because she had been disciplined and OH (and her GP) agreed that any future disciplinary would result in her likely being sick again. SHE thought this would mean the employer couldn't discipline her. It actually meant the employer dismissed her on capacity grounds because no employer can employ someone they can't discipline. And they won a tribunal on these grounds. Quite rightly actually. We all tried to stop her. We tried to warn her.

Employment isn't a strategy game. The rules are stacked in favour of the employer anyway. Please, please be careful. I am not sure you are being, and I am not sure that you are hearing what is being said. You are miles off a discrimination claim, and such claims more often fail than win. I do not want to see you lose your job over this.

[Eggbound]

Re: Opt-out of Sunday working

Just a quick update...opted out no problems. They have employed A.N. Other to work 2 Sundays per month and as cover for holidays etc. So all is well, for now. However, other problems continue...thats another story.

Thanks for all replies.