56 hours working week

[donnaanna]

my husban's company is trying to force their employees to work 56 hours working week, 3 days+3nighs+3 days off, each shift 12 hours long making it 56hrs week on average.
they signed contracts to work on average 4 shifts a week (variable days, nights, inc weekends & bank holidays) so 48hrs and all signed the opt outs to be able to do occasional overtime.
In theory they are doing "consultation" but in practice everybody was told to take it or loose job. also increase of working hours of 3 guys means the fourth guy will be made redundant.
Can the employer force the new shift pattern on them and increase their working hours from 48 to 56 a week? what can be done to stop it without risk of loosing job?

[New Judge]

Even allowing for an hour's break in each shift (which is not counted as working hours) the average is 51 hours weekly. This breaks the working time directive:

http://www.direct.gov...ndTimeOff/DG_10029426

[donnaanna]

Hi New Judge, thank you.
They all signed the opt out agreeing to work more then 48 hours but it was done with overtime in mind, not to work like donkeys week in week out...
Nobody wants to work 56 hrs every week but they don't want to cancel their opt outs because they are worried they will be sacked and will not be able to suplement their income with occasional overtime.
They are all not very highly paid so they are worried if they get sacked it will take too long and it will be too costly to go through the tribunal and although I have no doubt they will win they are worried they will go bankrupt in the meantime...
What I am trying to establish is if there is any way to stop employer increasing their working hours without having to cancell the opt out, just based on the fact that their contract clearly state 12 hrs shifts 4 times a week on average.
what happens if they get new contracts with the 56hrs a week and refuse to sign them? can employer terminate their current contracts and employ somebody else?

[tonywiltshire]

The Working time regulations 1998 dictate a maximum of 48 hours a week over a 17 –week period, with night workers to average no more than 8 hours in every 24 hours, again calculated over a 17 week period, the right to opt out of these restrictions exists as does the right to opt back in. My understanding is that your husband and his colleagues have opted out of the Working time regulations and their Contracts of employment reflect this.
If their employer wishes to vary the terms of the Contract of employment, from what you say this will probably be by agreement, it could be achieved under section 4 of the Employment rights act 1996.
If it is a “take it or leave it” attitude on the part of the employer rather than genuine consultation and your husband was dismissed he would need a one year period of employment to take the matter to an Employment tribunal for unfair dismissal.

In practice I understand your husband and his colleagues do not want their hours increased, but understandably in the present conditions do not wish to be dismissed. There is strength in numbers and if your husband is a member of a trade union he should speak to them immediately, if he is not a member of a trade union all those employees who will be affected by the variation should present a common front to the employer and demand meaningful consultation.

[donnaanna]

Hi Tony - spot on, the employer is pushy, they are not in the union but if they got together they migh have a chance to fight, excatly what I tried to get my husband to do.
I guess I know exactly where the problem lies:
1. those guys do not know/understand/like ligal stuff and simply do not want to have to do anything, typical males, burying heads in the sand;
2. those guys barely know each other and barely get time to see or speak to each other, given the fact that when one of them is at work the other sleeps to be ready to take over and vice versa... so it is imposble to get them all together and they have very little time since those changes are to be forced in on the 14.01.12.
i am going home to once again speak to hubby to get his bum in gear and phone/e-mail everybody concerned and try to convince them to show united front and 1. cancel opt outs simultaniously 2. refuse to accept changes to current contracts 3. be ready to sue for breach of contract and unfair dismisal if they get sacked and not to get re-employed on new contracts (this one will be tough..)

[bednobs]

i don't understand how they can do 3 nights, 3 days and 3 days off a week! there are only 7 days in one week

[tonywiltshire]

Donnaanna I have just read your comments to NJ who is very knowledgeable. At common law it is open for the employer to dismiss any or all workers and offer to re-employ some or all of them under a new and different contract. It is likely that dismissal and re-engagement under a different contract would only come about if the workers had been unwilling to agree to a variation. Under the Employment rights act 1996 they may be eligible for redundancy payments, the company could find itself losing the workers, paying redundancy or being involved in claims of unfair dismissal all of which could be potentially damaging.
The answer to this is to engage in meaningful discussions with the employer.

[donnaanna]

bednobs, it is calculated on average per annum.
365 days divided by 9days cycle, multiplied by 6 days worked in each cycle, multiplied by 12 hrs for each shift and divided by 52 weeks - gives 56.15 hrs a week.

[tonywiltshire]

doonaanna: Make sure they all work together this is their strength.

[buildersmate]

Nothing much more for me to add to what Tony has said, except:

As individuals, at any time an employee can decide to retract his/her right to opt-out of the Working Time Directive. Just put it in writing and gave the appropriate contractual notice to be on the safe side. If all employees did that as individuals but in unison the employer would not be able to continue a consultation to change the contractual hours to 56 as to do so would be unlawful.

It doesn't prevent the employer from trying to put a 'business case' that it needs such hours worked - but it would either have to back down, make all employees redundant and/or (anyway) have to face the likelihood of multiple claims for unfair dismissal at ET.

Bednobs - this refers to a rolling shift pattern that does not repeat on a one week cycle - it rolls such that employees do not work the same pattern each week - that is the very point so everyone gets some pain of working weekends.

[donnaanna]

Hi Tony, yes i do agree - meaningful discussions with the employer are always the best option.
unless the employer does not want to listen or do anything.
my husband has been with them for over 6yrs now and there are issues all the time.
they work in security and cannot leave their desks so they have huge probles taking their breaks on nightshifts as there is nobody in the office to cover the desk.
guys use company vehicles while at work and are required to pay insurance excess for each accident during working hours, even if it is not their fault. they are required to be at their desks 15min early to take over but this is not added to their working time so they lose 52 hrs of pay every year.
company regularly miscalculates thier tax and on one occasion one guy had to cough up over 5k to cover unpaid tax for last 4 years.
their shift schedule is always published late (sometimes not even two weeks in advance) and is changed regularly on very short notice screwing our private lives big time.
leave is never granted in timely fashion, sometimes we wait 3-4 months for leave to be confirmed and more foten than not refused.
the lockers are not big enough to hold all their stuff (most of the guys comute on motorcycles) and things go missing if left on top of lockers.

those are just some examples - guys being guys moan and complaint but most of the time do not do anything constuctive. and on two occasions guys who pointed out some issues to management were dismissed, one on disciplinary and we don't know how it ended, the other one was on probation and didn't get his contract confirmed/extended after 3 monhts.
in addition the owners claim guys have WRONG attitude to work and moan for no reason and should all be sacked for being miserable...

I start to wonder why i don't tell him to just chuck it and go looking for something else...

[donnaanna]

anyway - thank you all guys for helping and claryfing and taking time to read my winge binge :-) will let you know how it ended!