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I have worked for the same employer for the past 13 years as a full-time gaphic designer. A few years ago I had my first child and upon returning to work requested flexible working which was granted. As such I reduced my hours to 14 per week and worked from home. Over the past few years I have gradually increased my hours to become full time again for the last year. I still work from home. I am due to go on maternity leave for my second child later this year. I handed in my MAT1 form along with the dates I would like my maternity leave to start and the date I would be returning and my managing directer has requested that I have a meeting with him to discuss that I will be required to work in the office one day a week upon the return to work after my maternity leave. So I suppose I am asking a) are they allowed to change my contract before I go on maternity leave? b) do I have to agree to it now? c) what will happen if I do not agree to the change in contract. Although I was planning on returning to work I would like to go back to the 12 hours I did last time I returned. Do I have to tell them this now? I’m finding it really stressful that they are suddenly requesting this change just before I am due to go on leave. Thank you in advance for any advice.
Once a flexible working application has been approved, this amounts to a permanent variation to your contractual terms. The move to 14 hours per week working from home was therefore a permanent variation. You explain that your hours gradually increased until you were working full time again, but still working from home. I assume that this change in your hours has been agreed either explicitly in writing or by implication due to your salary increasing accordingly with the extra hours. In answer to your specific questions:
a) Your employer cannot change your contract without your consent. Therefore if they required you to work from the office without your consent, this would amount to a breach of contract entitling you to resign and claim constructive unfair dismissal. You would also argue that this change is linked to your maternity leave and claim sex discrimination. You should, however, note that sometimes an employer can implement this kind of change to your contractual terms lawfully. However, this is in limited circumstances only (discussed further at (c) below).
b) You do not have to agree to the change and should make it clear that you do not agree to change your homeworking arrangement.
c) If you do not agree to the change, the employer may choose to force the change on you. They could do this in one of two ways:
– Follow a consultation process, at the end of which they would require you to work one day from the office. You would either resign with immediate effect claiming unfair dismissal or you would agree to work from the office (you would make it clear that you are doing so under protest and you should take further legal advice at this stage);
– Follow a consultation process, at the end of which they could dismiss you and offer you re-engagement on the new terms. You would not have to accept the new job, but again you should take further legal advice at this stage.
In both of these situations the consultation process would have to be carefully carried out and your employer would need good reasons for requiring the change in the place of work. I believe it would be difficult for them to show a good reason for the change to office working if working from home has been successful for the last few years. As part of the consultation process you would raise childcare issues and explain why working from the office would cause you difficulties. It is therefore likely that forcing the change on you would result in you having an unfair dismissal claim and possibly a sex discrimination claim. However, you would need further legal advice at this point to examine whether the consultation process was fair and whether your employer had good reasons for making the change to office working.
You also ask about submitting a new flexible working request. There is no requirement for you to submit this request now and you may choose to wait until your maternity leave is nearing the end. You should not feel pressured into telling your employer your intentions about part-time working at this stage.
*Sarah Calderwood assisted in the answering of this question.