Change of hours

Q. A member cares for his disabled wife. His supervisor (with whom he doesn’t get on very well) wants him to change his hours. The new hours would make it harder for him to both work and fulfil his role as carer: can we prevent these changes?

A. Consider whether the employer has adequately consulted with the employee. For example, has the decision to change the member’s hours already been taken? If there is not a fair consultation before the change is made, then the employee may be able to resist the change by threatening to claim constructive unfair dismissal. As he may where insufficient notice of a change is given — the longer of the member’s contractual or statutory notice should normally be required — before the change is to take effect.

In addition, it may be that the member can seek the protection of the Disability Discrimination Act 2005.

The recent decision in Coleman v Attridge Law C-303/06, established that discrimination by association (perhaps in this case the member was being penalised for a reason related to his wife’s disability) is actionable. However, the employer’s defence to such a claim might be that shift patterns were being changed across the department. This argument — that changes were not directed at the member — may be powerful at least until the decision in Malcolm v LB of Lewisham [2008] UKHL 43 is rendered void on the Equality Bill becoming law.