BALPA National Officer Terry Brandon answers some of the questions he's been asked about flexible working, annual leave policies, and other industrial issues.
Q: I have a flexible working appeal hearing coming up and it has been listed to be heard by the same manager who rejected my application at the first hearing. Is this lawful?
Unfortunately, there is no legal requirement for the employer to change the hearing manager. It is, however, of course best practice to do so. It is still worth appealing as it gives you the chance to put your case again. You should take a Company Council rep or full-time officer who will have experience in flexible working cases. Exhausting the procedure would also show an Employment Tribunal that you gave your employer every chance to resolve the issue.
Q: I have just joined a UK-based airline and have been told that I may be required to work Christmas. I have small children and want to be able to take some time off with them over the festive period. What does the law say about Christmas leave?
Your complaint is not uncommon. Regardless of school holidays and regardless of what festivals you celebrate, the reality is that there is no statutory right to have these days off, even if you have children.
If you would normally work on those days, then any time off needs to be booked in the usual way. Your options may be annual leave or parental leave
(which is unpaid). Both can be refused, though your employer would, of course, have to allow you to take the leave at another time. In the case of parental leave, they can only refuse if your absence would seriously disrupt the business
So, what can you do if your employer does refuse you time off on days where you simply can’t get childcare? If you are a woman, you may have an argument of indirect sex discrimination
. You’d have to show how the refusal inconvenienced you, and explain why you thought the refusal wasn’t necessary. If your employer can justify making you work on those days, because they can’t run their schedule without you, the discrimination may not be unlawful.
Q: I have been asked to attend a ‘fact-finding’ meeting with my line manager as part of an investigation. I have been told by my manager that this is not a ‘disciplinary hearing’ just a meeting to ascertain the facts. I asked to bring a BALPA rep but was told this would not be necessary. Is this correct?
You do not have a legal right to be accompanied to an informal chat with your employer or to attend an initial fact-finding meeting; however, it is certainly best practice and it would be unusual not to allow you to bring a companion, work colleague or representative to the meeting. It would undoubtedly be worth trying to challenge this. An employer should have nothing to hide when carrying out an investigation and should recognise that the process can be daunting for most people. BALPA is well placed via a recognised Company Council to raise this with the airline and HR to discuss a change to the current practice. You do, however, have the right to bring a trade union representative or companion with you to a formal disciplinary hearing if the employer proceeds to one.
Q: I am working a reduced roster following a successful flexible working application. In my ‘variation to contract’ letter it contains a clause that allows the airline to revert back to full-time, if my operational standards fall below the airlines minimum standards. Can my airline simply force me back full-time now that I have been working a reduced roster for nearly a year?
In many airlines, reduced working hours (often through flexible working) have a condition associated to the variation to contract. This usually relates to the pilot maintaining above the minimum standard. If it falls below that standard, the airline reserves the right to increase your working hours or days. Your ‘variation to contract’ letter has an express term stating this. You accepted this term when you agreed to work the variation and, therefore, it is enforceable.
Posted on 19 January 2017