This time the experts, Esther Smith and Martin Brewer explain how to change an employees flexible hours to fit the business.

The question: Changing flexible working hours

We agreed to a flexible working pattern (reduced daily hours) for an employee with young children starting school. Several months on this is not working for the business and we need to review the hours. We would like the employee to resume full time working but not sure where we stand on this. A new contract was issued to reflect the part time hours. Can you advise?

Legal advice:
 

Martin Brewer, partner, Mills & Reeve
 

Assuming this was a request under the Flexible Working regulations then the change to the contract was permanent. Thus you are now seeking to vary the contract. Clearly you can do that by agreement, so do consult with the employee.

If she is not agreeable then your options are limited. You can impose a change (either by giving notice under the old contract and keeping the new one on offer during the notice period or by saying that from a given date the new hours will apply), having explained the reasons to her and having sought agreement.

If she still refuses to accept the change she will be in breach of the new terms (or she may resign and claim constructive dismissal). To win this argument you must have a compelling business reason for the changes you propose. She may also seek to claim sex discrimination.

This will be a claim for indirect discrimination and you will need justification arguments which at present cannot simply be cost (so your compelling business reasons for the change can justify both dismissal and indirect sex discrimination provided the reason is not simply cost).
 
Claims arising out of these circumstances can be time consuming and expensive so do take expert advice and plan well in advance.
 

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar
 

It does not appear that the flexible working arrangements were set up on a trial period, so you are not able to simply state that the trial has been unsuccessful and revert to the previous arrangements.

Her contractual hours are now those agreed under the flexible working arrangements with her, so if you want to change them you need to start a period of consultation with her, outlining the reasons why you believe there is an issue and why you believe these issues will be addressed if she reverts to full time.

The more objective evidence you have of these issues the easier it will be to have this discussion with her and move matters forward.

You would be expected to consider with her whether there is any way to remedy the issues without increasing her hours, such as involving other members of staff in the work she does, to cover her absences, or even trying to recruit additional resources.

Also, you need to be clear whether it is the hours that is causing the issue or whether it is that the employee is underperforming in some respect, irrespective of the hours she is working, which of course would ultimately be a disciplinary process if informal attempts to address the issue do not bear fruit.

So, in brief, you need to consult with her and try to reach agreement on a way forward.  If you cannot resolve the issue informally through discussion, you should take advice on where you go from there, which will need to be specific based on your business and what this employee does.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.