Am I within my rights to expect staff to work nights?

I am tight on employee numbers at the moment while I recruit new team members and I need more of my staff to do late night shifts for the short term. Can I expect them to do this, and if so when can they start?

When staff numbers become tight at work, an employer’s first point of call is often to look towards their current employees for support during these strained periods. Whilst this is perfectly acceptable, it is important that you ensure that you are adhering to correct employment law procedures with regards altering or changing employees working hours, even in the short-term.

Your first step is to check the contract of employment of the staff you want to do the late night shifts. The contract must contain, by law, information confirming the hours of work of the employees and you need to see whether there is provision within them for your staff to work night shifts when required.

Hours of work are a contractual term, which cannot be changed without agreement from both employer and employee. Sometimes, the hours of work which are written into a contract of employment contain some flexibility which allows the employer to require additional hours, or a change to working hours when required.

Flexibility

The existence of a requirement to be flexible with working hours in the signed contract of employment means that you are permitted to require your staff to change their day shifts to night shifts, or to extend their normal working day to include night shift hours. In order to avoid any potential resistance, you should keep your actual requirements within those permitted by the agreed contract.

If there is no flexibility built into the contracts and requiring the performance of night shifts would be outside of the agreed terms on working hours, you cannot expect the employees to automatically begin to do night shifts. Imposing this on them could, if it were to be considered as a fundamental change to their terms and conditions, entitle them to leave your business and claim constructive unfair dismissal.

Obtaining Agreement

In this case, you would need to speak to staff and attempt to obtain their agreement to working different hours. Explaining the reasons behind your request and offering some sort of incentive might make the process smoother. On the whole, you will find that your employees can sympathise with your predicament and are therefore, more than willing to provide extra support, within reason to help the business continue its daily activities. In line with this, employees are likely be more receptive to changes in the workplace if you can demonstrate that you have taken into consideration how such changes may affect your staff and their work environment.

Remember, your employees represent the backbone of your company, so ensuring that you look after your existing employees, whilst recruiting fresh talent is pivotal to maintaining a happy, loyal and productive workforce.

Answer by: Alan Price, employment law director of Peninsula

Further reading on shift work

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Managing Staff

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