Changing flexible working and work location after maternity leave: ask the expert

I have been with my company for 2.5 years and am currently in my sixth month of maternity leave. I recently submitted my Flexible Working Application (FWA) requesting a change in hours from 9-5.30 to 8-4.30, remaining as a full time worker. HR subsequently informed me (via conference call) that my requested hours would not work in my role. Additionally the company has changed the support ratio and parameters of my role (including work location) whilst I’ve been on maternity leave and as such my original role no longer exists. When I challenged them on this I was told the person carrying out my maternity cover is able to meet the new location and working hours requirements. The implication was that I fall in line and accept the new arrangements with the knowledge that my temporary cover can easily become a permanent arrangement. I asked about alternative positions within the business, but was told that none existed. Agreeing with the new terms has significant implications for me. My original role was designed around flexible working; my employment contract states I am a home-based mobile worker. I also gave full disclosure of my medical condition (a result of childhood cancer) in the company medical questionnaire upon joining the business. The impact of my physical mobility challenges was also verified via a Workstation (DSE) Risk Assessment carried out by the local Health and Safety Manager. I have all of this documented. As such the business has full awareness of the difficulties a commute into central London presents to me, and the practical advantages that a ‘drive to work’ commute affords with respect to my physical mobility challenges. I feel they are consciously discriminating against me in terms of my disability and maternity needs as they aware of my medical history and the reasonable adjustments required. I now have a follow-up call scheduled with a company HR Manager this week. From a legal standpoint do I have any options that will ensure I maintain a role as per my current employment contract? Are they in breach of my employment contract? Are they legally allowed to change my flexible working status and work location without my consent? As an alternative I would consider a voluntary redundancy package, but is there a minimum standard I should insist on (e.g. am I entitled to ensure I am financially supported until the close of this year)?

There are a lot of issues at play here. While I can’t comment on the business reasons your employer may have for their decision, we can certainly look at the procedures they have followed (or not) & see if they are acting correctly.

The redundancy issue is the key one, since if your role is made redundant, then this negates any issues regarding the working arrangements. You asked ” Am I entitled to ensure I am financially supported until the close of this year?” The answer to that is no, although with the caveat that if you are receiving SMP, you are entitled to continue to receive it for the full SMP period regardless of whether or not your contract ends. If you are dismissed due to redundancy, the only minimum standard that you can insist on is the statutory minimum package, although check to see if the company has a redundancy policy with enhanced provisions.

For your role to be made redundant, there should be a diminished need for the type of work you do, either generally or at the location where you do it. If the work still needs to be done, & you believe that there is no reason for it not to be done remotely as you have been doing, then you may well be able to argue that it isn’t a legitimate redundancy. Certainly if you have been selected for redundancy as a direct result of your maternity leave , then this is an unfair dismissal.

If you feel this is a direct result of your disability, then you could have a discrimination claim. They should be prepared to make resonable adjustments for you to enable you to do the job. It soulds like your current working arrangements are a form of adjustment, so they should not be able to take those adjustments away without a solid business case for doing so.

If your role is not actually redundant, then there is the issue of the flexible working request. It doesn’t sound like a correct procedure has been followed for this – they should have a meeting with you to discuss the proposed arrangement (including any possible compromises) & give valid reasons for any refusal (from the finite list of grounds detailed in the Flexible Working Regulations). This should all be confirmed in writing, with a right to appeal against the decision. If they haven’t followed the statutory procedure, you have valid grounds for a claim.

Finally, even if the flexible working request is legitimately refused, there is then the issue of them changing your terms & conditions of employment. If your hours & location are contractually part of your terms & conditions of employment, rather than at your employer’s discretion, then they can’t unilaterally change these without consulting with you & giving you plenty of notice, as well as having an objectively justified reason. So for them to impose these changes on you is potentially breach of contract, particularly given the disability issue on top.

All in all, I’d say your employer is on very dodgy grounds! It is a complex issue though, so it may be in your best interests to get some independant legal advice from an employment lawyer or similar. As you potentially have several legal claims, you may be able to negotiate a settlement agreement with your employer, which would be considerably over & above any redundancy package, & a solicitor will certainly be able to advise you on that. Good luck!

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