Answer by Tracey Guest

Q And A

Homeworking rescinded: ask the expert

I need some advice around the following issue. I work for a local authority. I applied for homeworking under the permitted policy some 4 years ago. This was agreed that I could work from home 2 days a week, normally fixed but flexible both ways around meeting requests and other work commitments. They set me up with connections at home so I can access all the systems, have email and my office extension diverts home so just like being in the office.

I had a baby in 2009 and returned to my post early in 2010 where this agreement continued. I have either worked one day at home and taken a days leave so I can spend time with my child or worked 2 days at home if work loads have required me to do so.

Although I followed the correct procedure at the time, the then boss failed to follow this up in writing and did not issue me with a homeworking contract which does say is required under the Policy.

As far as I’m aware there have never been any issues with my homeworking and I have two different line managers and there has changes of staff in my immediate team.

However, a few months a go the overall boss warned me and a couple of others that they were looking to review homeworking. At the time I got very upset and told the boss that I rely on my working arrangement to juggle childcare and working full time. The boss was quite caring and said they’d try to help me out.

We heard nothing and then and few weeks ago we were told in a meeting that they are stopping homeworking and removing the facilities we currently have.

Their reasons being that it no longer fits business needs following a wider team restructure. There are now less staff (although actually more in my immediate office with 2 people on higher grades), that it is preventing sharing common working practices, supervision of newer member of the team (I do not have any direct supervision responsibilities), and that it is not fair that we have the facilities when other people are asking for it.

They are saying we can still do home working ad hoc dependant on business needs or if we have any meetings go and work in the nearest area office but they do not want people have a fixed number of days at home.

This is no good for me as I have set up my child care around my current working arrangements and there are no local offices I attend where I could work instead.

I did argue my case but they were unwilling to listen. They were not very caring and said my reasons are no more special than anyone else who might want this arrangement.

They have not yet followed anything up in writing but again the policy states 30 days notice in writing is required. Nor have they had every team member in the office in who has the facility to work from home. This is supposed to come into effect in the next few weeks.

Please can you advise what can I do?

Your contract of employment is likely to specify your normal place of work, and this is probably the office premises. Employers usually deal with "homeworking" in a specific Homeworking Policy. We have not reviewed your employer's Homeworking Policy but it is likely to specifically state that is is not contractual.

It seems that your employer's policy provides them with the right to withdraw their consent for homeworking by providing 30 days notice. It is unclear as to whether your employer is required to give reasons for this, but they have attempted to do so by making reference to the recent restructure.

Whilst you may have potential claims to bring against your employer at a Tribunal, the Tribunal usually likes to see that you have exhausted other internal options first.

In the circumstances, I would recommend that you submit a formal grievance together with a formal flexible working request. Your grievance should make reference to your employer's breaches of the homeworking policy (e.g. failure to provide a home working contract, failure to provide 30 days notice of the change, etc). You can attach your formal flexible working request to the grievance and explain that this is the only available option for you given their obstructive behaviour.

Your formal flexible working request must be made in writing, confirm your relationship with the child, outline the changes you are proposing, and outline suggestions as to how your employer may deal with the effects of such changes. In your case, you are not suggesting "changes" as such, but you will be looking to explain how homeworking has been an effective tool so far and that there are no reasons why that should change. Explain that you do not have any supervisory duties and point out that you are always extremely productive when you work from home. You should focus on the business arguments in favour of working from home rather than the personal benefits to you. You mention the option of working from an office more local to you - are there any offices closer than the main office 20 miles away? If so, you could also put this forward as a suggestion.

Once your formal flexible working request is submitted, this will trigger a set procedure and your employer will be required to adhere to certain timescales. Your employer can only refuse your request on one of several “business grounds”, e.g. the burden of additional costs, detrimental effect on ability to meet customer demand, etc. Your employer must give you the opportunity to appeal against their decision.

It may be the case that your employer does have a genuine business ground for refusing your request, and if this is the case you would need to consider your options, i.e. whether you can make the necessary childcare arrangements or whether you want to consider seeking alternative employment. However, if their refusal is unreasonable, you could have potential claims for constructive unfair dismissal (if you decide to resign as a result of this), sex discrimination, and / or breach of the statutory flexible working procedure.

In the event that you require help drafting your grievance and flexible working request of you need further information regarding your potential claims, please contract Tracey Guest on 0161 975 3823.

Tracey Guest is head of employment and a partner at Slater Heelis in Manchester. She specialises in employment law and is also a working mum.

Related tags: Flexible Working | Homeworking