Homeworking rejected: ask the expert

I am currently on maternity leave and moved away from the area where I used to live a few months ago. I work in the IT Industry and the company I work for tends to encourage home working and all the necessary solutions are in place and I have for years worked form home at last one day a week. I contacted my employer earlier in the year requesting flexible working (part time and working from home) and they asked me to contact them again in June, which I did. They emailed me to inform me that they couldn’t agre to the terms I requested and could have a meeting to discuss further. We then met with HR at the end of July and i explained I am prepared to work full time and look at a different or more junior role, but would have to be home based. They said they would come back to me within 14 days, but took until 19th August (my statutory mat pay finishes at the and of August). Unfortunately they can’t offer me any role within the copmany that is home based. Now what? Do I have to resign from my role?

There are two ways to make a flexible working request – you can do this informally by talking to your Manager, or you can follow the statutory flexible working request procedure. From the information you have provided, it seems that you have followed the statutory procedure. You have made your request in writing, a meeting has been held, and a written decision has been provided.

It is unclear as to why your request has been refused, although you do state that your employer has provided reasons. In order for the refusal to be valid, it must be based upon a genuine business ground, which is defined as one of the following statutory grounds:

1.      The burden of additional costs
2.      Detrimental effect on ability to meet customer demand
3.      Inability to re-organise work among existing staff
4.      Inability to recruit additional staff
5.      Detrimental impact on quality
6.      Detrimental impact on performance
7.      Insufficiency of work during the periods you propose to work
8.      Planned structural changes

As your request has been refused, the next stage would be to appeal against the decision. An appeal should be submitted within 14 days of receiving the decision, so you are actually out of time. You can try to agree an extension of the deadline with your employer – particularly given the fact that they missed their deadline in providing the initial decision. Ensure that the agreement to extend the deadline is made in writing and signed by yourself and your employer, and that it specifies a new date by which your appeal should be submitted.

In your appeal letter you should set out the reasons why you disagree with your employer’s decision. Look carefully at the reasons why you request was refused and make sure you submit valid counter-arguments. In your case, the fact that you have previously worked from home may assist you, however as this was only for approximately one day per week it may not be enough to support the argument that working from home full time would be effective.

Your employer should arrange an appeal hearing within 14 days of the appeal letter being submitted in order that you can discuss the matter, and a decision should be communicated to you within a further 14 days after the hearing.

Whilst the appeal stage may resolve the situation, it may be that your employer stands firm with their original decision. If your employer has a genuine business ground for refusing your request, you would need to consider other options, i.e. whether it is possible for you to work from the office, or whether you would have to resign and seek alternative employment.

If, however, you do not believe that the employer has properly established a business ground for refusing your request, you could have potential claims for constructive unfair dismissal (in the event that you resign), breach of the statutory flexible working procedure and / or sex discrimination.

If you require further information regarding your request or the potential claims that you could bring at Tribunal, please contact Tracey Guest on 0161 975 3823.

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