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Advice sought on new Carer's rights - Carers UK Forum

Advice sought on new Carer's rights

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Hi Everyone

My wife is a nurse working in a NHS Trust. She has worked night duty for 17 years. Initially it was so she and I could care for our children when they were young. However life changed when I had an accident in 2000 losing my right leg among other problems.

An edict from the top management at the Trust has stated that all permanent night duty staff should rotate onto days. My wife cannot do this due to her caring commitments. The new legislation gives her the right to request flexible working but the Trust can flatly refuse the request!!! (What's the point of a toothless piece of law???)

She is fighting her side at present and no decisions have been imposed on her. My question is if they finally impose the change and make her work days and she does not work the day shifts and they then try and sack her is there anything she can do at an Industrial Tribunial?

Although her contract does not say she is permanent night duty it does state she is entitled to "nights off" for her annual leave. Letters sent to her state she is permanent night duty. So I believe she has an implied term and 17 years of working night duty surely proves this?

Any legal eagles out there please point us in the right direction

Regards to all in anticipation of helpful replies.
Hi Papasmurf. If your wife is in a Union or the RCN she should see her Steward or Representative. Otherwise the Citizens Advice Bureaux or local Law Centre may be the best place to start if a negotiated settlement cannot be arrived at.
best wishes normangardner
Thanks Norman

We are negotiating at the moment. However as this has been a concerted effort by the management on this occasion we feel there is a hiden agenda. My question is hypothetical at the moment but as my wife cannot rotate onto days we feel that we are on collision course.

All i am asking is it potentially unlawful for them to impose this day duty on her?

Hi Papasmurf, without seeing the full agreement or contract it is impossible to say. However the management could claim that permanant night staff are redundant.
If no one else on her grade is on permanent nights, it would seem that the management have a case. It would then be a matter of discussing redundancy terms, and she would have to seek a post on permanent nights elsewhere.
That is the view I would take if I were her Representative or Steward. But the Union / RCN Legal Departments, or other legal experts, may take a different view and advise that she sue for wrongful dismissal. It depends on the Case law in this area.
best wishes normangardner
Wow. The queries that come on here... Image

Firstly, the health trust MUST, by government decree, have a policy covering its working carers. Check that. If what they are trying to impose goes against that policy, no problem.

Secondly, talk to ACAS. They can advise on employment rights - but remember that a contract of employment is not only written, it is implied through established practice. The fact that it speaks of nights, rather than days, off, and there are letters that show that your wife is permanent night staff, would suggest that established practice makes it clear that your wife has a contract. As forcing her to change contract effectively makes her unable to work, this may constitute constructive dismissal. ACAS will be able to clarify this, with any luck as my employment law is a little rusty.

But get the union involved if your wife's in a union, as Norman says.
Many good points made by Charles. The problem is most of these solutions end up in a financial settlement, and one has to adjust to a new situation in the end anyway.
An alternative way may be to accept the new contract including day shifts and then swap night shifts with other workers. Most would be only too happy to avoid a turn of night duty. I once did eighteen months of nights myself by this method because that suited my lifestyle at the time.
Scottish Mp's are currently accepting financial settlements for early retirement and then seeking re-election to the new body. In this fluid labour market one has to be flexible to gain the ends sought. The old days of certainly and employment for life are long gone I'm afraid.
best wishes normangardner
Good points here from you both.

We'll look at the ACAS situation. The crux of the whole issue is that the trust are initiating change, firstly to get rid of the night duty contracts, secondly to get my wife to rotate probably on a monthly basis in due course and are tempting her with a very small change at the start.
Hi there

Just thought I would refer you to the new booklet that we published earlier this month. Its a detailed guide to flexible working - who is entitled, how to make a request, on what basis it can be refused etc. There might be something in there that could help. You can download or order a free copy of the booklet (An Employees Guide to Work and Caring) here: http://www.carersuk.org/Information/Ord ... tsbooklets

Best wishes
Thanks for this Christine

The trouble with this whole situation is that the request for flexible working was made many years ago. The Trust are now wanting to renege on the return to work contract. In addition we have now had a report from the Occupational Health people who my wife was ordered to see. In the report, which is reasonably supportive of the situation, they state that management need to staff all shifts. This has changed, from my wife needing to be kept up to date with procedures to staffing shifts!!!! Both given reasons are non genuine reasons for this current onslaught.

We'll have a look at the booklets.

Hi to everyone who has helped me and my wife. I thought I would update you all and see if you have any more suggestions.

The management at the hospital kept harrassing my wife to set up an "informal meeting" to discuss the issues. My wife was not happy to go this route without RCN advice. A problem in getting to the right person at the RCN took ages to sort out and she was accused of avoiding the issue. We eventually got onto a great advisor at the RCN and the meeting will be going ahead hopefully in the next few weeks.

As a result of the initial meeting and following the advice on here we printed out the Trust's policies, (and destroyed a tree in the process...so much paperwork!!) I read them thoroughly and the following was gleaned from them.

My wife probably has a grievance against the ward manager, the Human resources person and the ward manager's boss too. The grievance revolves around the way that the Informal Meeting was being presented to my wife. The fact that her ward manager had actually been through the informal process was ignored and a second bite at the cherry for the second meeting was being attempted. As the RCN rep said "a informal formal meeting really is unfair to you" We don't want to initiate this as yet pending the outcome of the formal meeting.

The work life balance policy clearly states that the Trust desire to help and assist workers to balance their work and home commitments. The policy to get rid of night staff conflicts with this policy.

The management have verbally indicated that there is no real policy to cover my wife's circumstances but that their Capability Policy may be used to persuade my wife to change.

The management will trump up some training needs that could be construed under the Capability Policy as being essential for her development and if my wife does not comply then formal discipline action could be used against her.

We have put together a huge file for the RCN and in it the case of Colemen v Attridge Law and others has been also cited. (Thanks to the poster in the forum that spotted that one.)

As I see it the mangement response to the problem of my wife being on night duty is disproportionate to the damage they are causing her and our family. The Capability threat is neither reasonable nor appropriate in these circumstances. Hopefuly it is also illegal if the ECJ find in favour of Mrs Coleman.

Anyway my wife will attend the meeting with the RCN rep and we will see where it goes from there. My wife is now off sick with the stress of it all. Is mangement liable for making her ill? They have, after all, brought all this on to my wife and she has not initiated any of these issues. Comments please.

My wife is adamant that she cannot do even one day of this shift change onto day duty. The mangement are insistant that she does do it. Collition course???

Regards to all in anticipation of some helpful comments.