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I have been employed with my current employer for 14 years. During this time my working pattern has been to work mainly from home with one day a week in the London office (I live three hours away). This was not written in my contract, but was agreed orally in my interview and subsequent one to one meetings with my manager and has worked well for 14 years. I now have young children and have to arrange lengthy childcare for the one day in the office – this is childcare which I cannot access on more than one day a week. My employer has released a new attendance policy saying everyone has to be in the office for three days a week. I cannot do this due to childcare, as well as cost, and my general well-being. Where do I stand?
I understand that for 14 years you have worked from home with one day per week in the London office, which is three hours away from home and entails a six-hour commute on those days you attend. Although this working pattern is not written into your contract, it has been agreed in various one-to-one meetings with your managers and has been in place for some 14 years. Your employer has now released a new attendance policy which states that all employees must be in the office for at least three days per week. You are unable to accommodate this change due to childcare needs, cost and time.
Generally speaking, terms and conditions of employment can be agreed orally or in writing or a mixture of the two. They can also evolve over time and they can become your fixed, agreed terms and conditions by virtue of the fact that this is the way the contract has been performed (without objection) over a period of time, in your case for the last 14 years. Therefore it does appear that this is the contractual arrangement that has been agreed.
An employer should consult with employees in relation to any change to the terms and conditions of employment, which in your case is that you work from home for all but one day per week. You would be able to argue that the fundamental change to your terms and conditions (in terms of days, hours and/or location) without your consent is breach of contract and potentially sex discrimination. You could potentially have a claim for constructive unfair dismissal if you resigned in response to your employer’s treatment of you (NB I would not advise you to resign without first taking specific legal advice). Any claim for unfair dismissal or discrimination must be brought within three months of the discriminatory act and you must go through the ACAS pre-conciliation process before you can submit a claim.
Furthermore, if you are the only employee being subjected to this treatment, and this treatment is due to the circumstances of being unable to attend work at a different location when you were required, due to childcare commitments, you could potentially argue that your employer’s treatment of you constitutes unlawful sex discrimination.
In the first instance, I would advise you to arrange a meeting with your manager or HR department to discuss this change to the attendance policy and point out how this constitutes a change to your terms and conditions of employment and that you do not and cannot agree to it. If this does not resolve issues, you should raise a grievance in relation to the unilateral change to your contract of employment. If this does not resolve matters, I would advise you to take further specific legal advice in relation to your situation, namely the alteration of your terms and conditions of employment without your consent, the potential unlawful discrimination issues and the possible next steps. If you do want us to review your position further for you, please contact Tracey Guest on 0161 672 1425.
*Lucy Flynn assisted in answering this question.