If there was no formal agreement either way and you have been working these hours since...read more
I currently work for the local government as a social care worker with a 28 hour contract. I am on maternity leave which is about to finish. I asked to go back to work using the flexible working policy so that I could look after my children instead of working long shifts, which include 24 hour and weekends. I was rejected, then after speaking to the union I was advised not to appeal this decision but to ask for redeployment instead, this was also refused. I feel that I am being deliberately discriminated against, no one in my department has asked for flexible working before, and was told by HR that if anyone should get flexible working then I should. Now I am faced with losing my job. I am not sure what to do, the union are now saying that either I just work the impossible by continuing with my normal shift pattern or stop working. Any advice?
It appears that you have made a formal request under the flexible working policy. The company concerned should have held a meeting with you to discuss your proposed working arrangements before rejecting them. I am not certain whether this took place. I am also not sure whether, when rejecting the arrangement they gave one of the eight reasons permissible under the regulations.
Assuming that they did, they would not be able to reject your request out of hand. They would have to seriously consider whether it would work and if necessary give you a trial period to see whether it would. I do not know whether the shift pattern or working hours which you proposed was something which should work in the existing system or whether it was something that would result in a creation of a completely different system just for you. If the latter, then it may be legitimate to reject it. If the former then arguably they should see whether it works first before rejecting it. The company will no doubt argue that its only obligation is to offer you your job back on return on the same hours/shift pattern.
However they should not ignore the fact that an outright rejection without investigation or trial may amount to indirect sex discrimination. I suggest that you do in fact appeal the decision indicating that there was insufficient reason for the rejection. You should strongly argue your case for the need for the hours/shift requested, but also try and put a business case as to why the company could manage to cope with it without too much disruption to fellow workers. I suggest that you also propose a trial period of three months after which you could have a review to make it work. If all this is rejected again, then you may have nothing to lose but to issue a Sex Discrimination Questionnaire asking questions about the company’s working practices and make up of the workforce.
Following receipt of these results, you could then decide whether it would be worthwhile mounting a claim for constructive unfair dismissal (forced resignation amounting to a dismissal) and sex discrimination. I would not do this lightly, however, and I would threaten it before actually doing it to see whether the company might revise its decision or at least come to a settlement with you.
Whilst every care has been taken in compiling this answer, WorkingMums cannot be held responsible for any errors or omissions. This information is not intended to be a substitute for specific legal advice.