Night Shift Refusal: Is It Grounds for Termination or Justifiable Concern?

Dear All,

I just wanted to know if a person who refuses to work night shifts/odd hours could be considered a case of insubordination and be terminated. The person's offer letter does not mention night shifts, and assuming there are no health issues, what should the course of action be?

Regards,
Anju

Madame,

What is the nature of work he is supposed to do? Certain jobs require working in shifts. Please revert.

Then maybe I will try to help you.
Jitendra

If the person's offer letter or appointment letter does not address this issue, then you can't ask him for the same. In fact, he can create a legal issue in case you terminate him on these grounds.

Regards,
EAFIL :idea:

Hi,

It is necessary to know the industry that we are talking about.

The question is usually related to the terms and conditions of employment. These are found in the applicable employment statutes, the Appointment Letter, Service Rules, and the case law on the subject, etc.

Normally, night shifts are worked in factories. The other places include hospitals, restaurants, residential hotels, and maybe a few more types of organizations where night shifts are required.

If the organization is covered under the Factories Act and the Industrial Employment (Standing Orders) Act of 1946 is applicable, then the individual concerned is obliged under the law to work night shifts. If the Standing Orders are not applicable and if there are Service Rules defining the terms & conditions of employment, then again, he may be obliged to work the night shift. If the Standing Orders are not applicable, nor are the Service Rules, but the Appointment Letter has stipulated such an obligation, he may be obliged to work the night shift.

If the Factories Act is not applicable and the individual is employed in other types of organizations described above, including perhaps the BPOs, back-end offices (as covered under the Shops & Commercial Establishments Act), again, the above analogies will apply but only if the concerned organization is exempted under the applicable law from normal working hours stipulations and is thus permitted to work night shifts.

Refusal to work night shifts when one is obliged to work night shifts, as explained above, is misconduct, and disciplinary proceedings will be in order before termination can be considered. Again, it depends upon the status of the employee - whether a "workman" under the Industrial Disputes Act or not. The management response will have to be determined based on the consideration of the above facts.

Are we clear on our action options, please?

Regards,

Samvedan

November 18, 2006

All,

Thanks for the reply. This is in the context of IT services that are moving towards 24x7 support. Please let me know what the plan of action should be in case a company wishes to change shifts/timings. Is prior notice/consensus from employees needed?

Anju

Hi,

An IT services company moving towards a 24/7 environment means that you are covered under the local Shops & Commercial Establishments Act. This would imply that you have to overcome at least TWO obstacles.

The first hurdle is to obtain an exemption from the existing working hour stipulations under the act. This can be achieved by submitting a suitable application to the authorities, who would need to process the request with their superiors in the Labour Ministry. Depending on your ability to convince the authorities of the necessity to shift to a 24/7 environment, you may receive the required exemption.

The second obstacle involves incorporating "shift working" as a component of your service rules and/or terms and conditions of employment.

Once these two issues are addressed, you will have the necessary flexibility and authority to implement shift working in your establishment.

A competent lawyer experienced in handling Shops Act matters should be able to assist you in obtaining the exemption. Subsequently, we can strategize on how to include shift working as a term or condition of employment!

You are fortunate to receive this prompt response as I will be unavailable for the next five days or so!

Cheers,

Regards,

Samvedan

November 18, 2006

If the company was previously working in a 24x7 environment before the engagement of this employee, and a clause is mentioned in his appointment letter that he can be transferred or placed to any working place within the stipulated norms, he can challenge working the night shift only on medical grounds. The company can still take action against him for prolonged illness affecting his work.