Food hall staff at the Princes Street branch of M&S have spoken out against plans to change their shift patterns to include a 5am start time, deemed necessary to have the food hall ready for store opening at 8am. M&S bosses have refused to reverse the changes to take account of staff concerns for their safety, providing instead, personal attack alarms to those who feel their new commute times will put them at risk.
The Consequences of the changes
Staff have stated that their travelling times coincide with the closing times of some city centre nightclubs and include areas which, while busy or safe enough during daylight hours, are simply not safe in the middle of the night.
In response, they have been directed to the nearest bus stops to their homes and, in one case, told that CCTV is in operation in a dark underpass the staff member will have to walk through to get to work.
Anyone who has ever found themselves in a city centre at 4am will know how unpredictable and uncomfortable an environment this can be, especially if you are alone.
Even if the city centre of Edinburgh is considered relatively safe, or the pubs and clubs are not in full operation yet and therefore the streets are not routinely full of drunk people finding their way home or fighting in the taxi queue at 4am, the areas where the various staff members live may not be safe enough at that time for them to comfortably travel through to get to Princes Street.
To deliberately place employees in such a situation and deem it “reasonable” while providing no alternative would be considered pretty harsh at any time, but at a time of uncertain job security and any other job opportunities after a particularly difficult 18 months, is heartless.
There has been a 4-week notice period in relation to the new changes, during which each affected staff member has been spoken to individually. This should not be confused with a consultation period, as no other options have been given unless certain staff members have proved unavoidable difficulties with childcare.
Although a 5am starting time is not unusual in many sectors, including some retail outlets, the fact is generally known at the time of applying for or starting a job. This type of shift pattern was not agreed upon by the staff members affected and their only other option is to voluntarily leave their job, leaving them potentially unable to claim unemployment benefits for up to 3 months if their decision to leave is not deemed reasonable. For some this may mean the difference between keeping and losing their home should they be unable to find another job quickly.
Further, being given new starting hours which effectively mean getting up in the middle of the night on a regular basis will have consequences on the physical and mental health of those affected. It is not clear what provisions M&S has in place to deal with these issues should they arise.
What is the law?
Working hours in Scotland are governed by the Working Time Regulations. They cover the number of hours which can be worked per week; holiday entitlement; break entitlement; limiting of hours of night work and rules for young workers. There is no definition within the Regulations or elsewhere of unsociable hours but these are generally agreed to cover night shifts and early morning.
The Regulations do not cover the kind of action M&S is taking in its Princes Street outlet but there is guidance on how employers can manage employees working unsociable hours. This includes ensuring that the working area is well-lit and safe, with the use of security systems if necessary; adjusting start and finish times to tie in with public transport or providing transport to and/or from work if this does not adequately guarantee worker safety.
There is also no law on rates of pay for employees requiring to work unsociable hours, and indeed this does not appear to have been a consideration to M&S in introducing the new 5am start time.
What could M&S do?
It is clear that the staff affected by the changes M&S are making have real, legitimate concerns on a number of levels. Their bosses have some options open to them to get their employees back on side and show that they are willing to treat them with respect and dignity.
(1) Offer transport to those starting at 5am.
This would be a significant financial investment but would allay the fears of the staff who have spoken out against the changes.
(2) Consider an increase in the rates of pay for those who now work unsociable hours
This is not a requirement by law but that does not mean it should not be a consideration to an organisation which wants to be seen as a reasonable and fair employer.
(3) Offer health assessments at regular intervals to those working unsociable hours.
The reality is that there will be some physical or mental health impact on those with no option but to work unsociable hours. Any employer surely wants to ensure that their employees are in the best possible health and are able to seek support for work-related health problems.
(4) Issue an apology for the handling of the issue so far
Clearly staff feel as though they have been given very little choice but to put themselves at risk of harm in order to keep their jobs. They have spoken out against this with the backing of their union and it would be a sign of serious intent to consider other options if an apology and acknowledgement of the problem was issued.
It remains to be seen what, if anything, M&S will do in the face of such strong criticism but it is disheartening to see an employer treat its employees so dismissively in the current climate.
Blog by Shona Cocksedge, Solicitor