Flexible working turned down: ask the expert

I have been working for my company for over 6 years now and I was on maternity leave from June 2013-June 2014. When I did my back to work meeting with my line manager I told him that I would have to go back to university in October which he made not of. I went on to tell him that once I knew my timetable for university I would let the company know. I began work middle June 2014 and on last week July to first week August 2014 I was ill and was diagnosed with having vertigo, something I had never heard of before. I was advised by my doctor to take 2 weeks off in which she write me a sick note. I was told that I would not be paid sick pay even though I had carried out the necessary steps when calling in sick according to the company handbook. I was then told by my line manager that the branch I worked it no longer paid sick pay, that all they do pay is SSP, which I am not entitled to as my earnings for the week are not enough to receive SSP. I reminded them about my university course and filled out relevant documentation for flexible working, but they said they didn’t receove it. I refiled it and they said it would take 28 days. I was extremely upset. I was then told I could only have shifts that do not work with childcare. I was advised to move branch or find a nanny to look after my daughter until 10pm or to reduce my hours to eight which I cannot financially afford. What can I do?

Your contract of employment determines whether or not you are entitled to full pay or only SSP when you are sick. In your case, the statement in the Staff Handbook is capable of being contractual. Before your employer can change the policy, they would have to consult with you and give you opportunity to object. You should raise a grievance about the failure to pay you. You have 3 months to make a claim in the Employment Tribunal for “unlawful deduction from wages”, the date running from when you should have been paid for the time off. Before you can do this, you must contact ACAS for “Early Conciliation”. The time limit is paused whilst you contact ACAS and for up to a month afterwards.

Under the flexible working legislation, your employer can refuse a request for flexible working for business reasons. Inability to reorganise work amongst existing staff or not having work at the times you are looking for would be considered sound business reasons. Your employer would not be expected to rescind other mothers’ flexible working applications to accommodate you. Your employer’s timescale for getting back to you would be considered reasonable.

As well as the flexible working legislation, you are assisted by laws against indirect sex discrimination. Any restrictive rules that disadvantage women caring for children, such as requiring you to work on specified days/hours per week, must be justified as proportionate.

If your request, is rejected, you should have the right to appeal the refusal and have it heard by a different manager.

If you are not successful in persuading your employer to accept your chosen work pattern and cannot return to work as a result, you should seek specialist legal advice about your options.

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