Forced to go back full time to the office

I returned from maternity leave in 2022 and requested to work flexibly with condensed hours and two days a week from home to accommodate childcare. This was approved on a trial basis by my previous manager and HR. Pre maternity leave I worked fully remote due to the pandemic and this was never an issue. I’m coming to the end of the trial period now and the business has ordered every employee back into the office full time, citing this will improve quality and performance, although no evidence has been given to back this up. They’ve emailed me today to reject my flexible working request after evaluating the trial period as it’s not in line with everyone else being in five days. I’m now expected in five days a week which I cannot do. I could appeal, but the answer will be the same. My new line manager asked me if I would leave as a result and I know they’re now recruiting anticipating my resignation.

Woman looking stressed at her desk

 

I’m really sorry to hear about what you have been going through at work and the approach they have taken to your flexible working request. Unfortunately, this happens far too frequently and it is not the correct approach for a company to take.

I know you have said that you know what the answer will be if you appeal the decision officially; however, this is still the path you need to go down. You did the right thing and followed the right process in submitting a flexible working request and as they have now rejected the trial period you need to complete that process. For example, you should appeal their decision to reject the trial period and set out in detail the reasons why you do not agree with their decision. I’ve summarised below some of the key points I recommend you include in your email based on the information you’ve given. ACAS also have a useful page which can be found here.

As a starting point, in your appeal I recommend you list all the reasons you originally gave for requesting the trial and then explain how those factors remain the same or how working from home has not affected your ability to perform your role i.e. make it clear that your personal circumstances haven’t changed since the trial was agreed and that you have met any criteria or conditions they set for you.

As I am sure you know from making the original application, there are only eight business reasons an employer can rely on to reject an application. These are:

  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

It looks like the reason they are relying on is “flexible working will affect quality and performance”. Frustratingly, the regulations don’t require businesses to provide strong proof of their reasons, but if you genuinely believe the reason doesn’t exist you can challenge them on it. I would therefore recommend as part of your appeal you explain why you think you working in this way would not affect your quality and performance or that of the team and the company more generally.

Your situation is also different to the rest of the workforce. That is the fundamental point of the flexible working process; that individual employees can request a format of working which suits them personally and which is different to the normal working arrangements in place. Their rejection of your request on the grounds that it doesn’t match the normal working arrangement of being in the office five days a week is therefore fundamentally flawed.

You had requested the flexible working in order to meet childcare commitments. It is well documented that requiring people to work full time or to work permanently in a specific location can be potential indirect sex discrimination due to the impact it has on those with caring responsibilities, which tends to be predominantly women. This means that for an employer to have a policy requiring employees to work in the office five days a week they need to show that they have a legitimate aim behind their policy and that the policy itself is a proportionate means of achieving that aim. On the face of it, it looks like they may struggle to meet this test.

I would therefore recommend as part of your appeal you also explain that you believe their policy of working in the office five days a week is indirect sex discrimination. You can explain as part of that section that you understand the policy applies to everyone equally; however, it will have a disproportionate effect on women and that it is having a disproportionate effect on you personally and putting you at a disadvantage.

If you can also include any examples of alternative ways they can ensure quality and performance without everyone having to be in the office all the time I’d recommend you included those too. For example – regular teams meetings, regular one to ones, dealing with specific performance issues, aligning the days all staff work in the office for consistency etc. It is hard to provide more guidance on this without knowing what the business concerns about performance and quality are and you could highlight this in your appeal – unless they’ve already provided you with the information.

In particular, if you are not aware of any issues with quality and performance in your team you could refer to this in the letter. Or if you are aware of any issues you could explain how you think those issues could be addressed.

I would highlight in your appeal any successes during your trial period as well and make it clear that you consider the trial period has worked for your personal role and you are concerned that the company are applying a company wide policy to you unnecessarily and not taking into account your personal situation. You could explain that you had understood the trial period would be considered based on the merits of you working in that way, but that this doesn’t appear to be what the company have done.

I’d also recommend as part of your appeal that you explain you are concerned that the company are trying to push you out . You could refer to the conversation with your new line manager about leaving if your request is resigned and explain you are worried that this shows the company want you to leave. You should also refer to the fact they are now recruiting in anticipating your resignation and explain that this makes you feel very uncomfortable as you have not resigned or been given a chance to appeal the decision. You should explain you are concerned that this shows they have already made u their minds and are not going to genuinely consider the comments you have to make.

I would emphasise in your letter how long you have been working for the company for (which I presume is more than two years given your comments about Covid) and that you are disappointed that you are being treated in this way following your return from maternity leave.

Hopefully, raising these issues will make them reconsider their decision. If it does not, depending on their response and how they handle it you may potentially have a claim for indirect sex discrimination and constructive unfair dismissal if you were forced to resign. If you wanted to consider taking this further though I would recommend you sought legal advice sooner rather than later as there is a short three month time limit to take legal action in the employment tribunal.

I hope your appeal has the desired effect and they reconsider the decision. Good luck.

*Charlotte Farrell and Tabytha Cunningham are Associate Solicitors at Paris Smith in Southampton where they work in a job share.



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