Q And A
Working from home rescinded: ask the expert
I returned from maternity leave after my first child and had an agreement to work from home 3 days per week and have 2 days in the office. I did this for a year, with praise for my work and achievements and no issue raised regarding my working from home. Since I have been on maternity leave with my second child the Director has changed and has now said that they will not support my working from home. (I expected this as they have refused it for members of staff who have recently returned from maternity leave, in some cases, it appears to try to force them to leave.) Having to go into the office, will not only mean I will not see either of my children at all during the week, but also the extra childcare and travel costs will cripple me. They had a restructure whilst I was away, and have given me line management responsibility and are saying this is why I can no longer work from home.
I feel I am in a no win situation, as if I leave I have to pay back 6 months of maternity pay,and lose out on future earnings. If I stay, I won't see my family and will be only just making enough to pay for the childcare and travel costs. As I have a letter agreeing to me doing the work from home can they refuse it? What do I do?
Answer by Tracey Guest
When the Company agreed to you returning from maternity leave after having your first child, on the basis of you working from home 3 days per week and working 2 days in the office, this new work pattern was a contractual variation to your previous contract of employment. This was a permanent change, unless a further variation is mutually agreed by the Company and yourself.
If the Company now seeks to change your previous working arrangements, any further change will be a contractual variation and requires your consent. A change without your consent will be a breach of contract. This could result in you having a claim for constructive dismissal and / or sex discrimination against the Company.
I understand that the Company has stated that the reason you can no longer work from home is due to you having new line management responsibility. There are two options to deal with this. You could suggest that you do not want this new responsibility or, alternatively, set out that you believe you can carry out this new responsibility when working your 2 days in the office and set out how you believe this can be done effectively. I suggest that you set this out in writing to the Company.
You do need to be aware, however, that if the Company has decided that there is no longer a role available for you, working from home 3 days per week and 2 days in the office, this could amount to a potential redundancy situation. The Company would need proper reasons as to why the role is no longer available working from home.
Furthermore, any employee on maternity leave, in a redundancy situation, has an additional right – which is the right to be offered any suitable alternative employment, before such offer is made to other employees carrying out the same role as yourself, who are not on maternity leave.
The Company could argue that the only alternative employment available is for you to work full time from the office and that this is what has been offered to you. However, from what you have said, it appears that the Company has not yet commenced a formal redundancy consultation procedure with you and you have not been informed that you are at risk of redundancy at all. Therefore, if the Company does not follow a fair procedure and was subsequently to dismiss you for refusing to work full time from the office, you would have a potential claim for unfair dismissal and sex discrimination.
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.