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I am a Customer Service Manager and manage a team of 12 staff. I have been employed by the company for three years. I went on maternity leave in December 2015. As soon as I told my manager I was pregnant, I made it clear I would not be returning to work full time. He made it very clear he would rather I came back part time rather than not at all. Whilst on maternity leave he visited to discuss my return and I asked if I could come back for 20 hours. He said that he wanted this and needed me to send it in an email with what I had applied for and he had to discuss it with the regional manager. I sent an email with what we discussed and he replied that he had spoken to the regional manager and he had agreed the application, but I just needed to fill a particular form out. About a month before I was due to return back to work in September I had not had anything official in the post so rang HR and they said they knew nothing of this meeting and thought I was not due back until December 2016. I was told my manager had been moved. They then proceeded to tell me I had to apply for flexible working again on the official form and it would be reviewed by the new temporary manager. The new manager said he did not think it would work but would trial it for three months. He has made it clear (in front of other colleagues) that he doesn’t think that part time works for a business and this role cannot be done part time and I need to prove myself! I have spoken to my new manager about the legality of the previous agreement with my old manager and he said he needed to speak to HR to get advice. I have spoken to HR and they have said that they need to speak to my manager! I feel like I am being completely fobbed off as none of them really know! I feel so unwanted and disposable but no-one has made it clear what happens at the end of the three months if they don’t think it has worked and also what they are measuring the success of this against. I am being giving unrealistic goals and feel pretty overwhelmed and undersupported about the whole thing. All I really want to know is when my old manager sent me an email saying my part time hours had been agreed was that legally binding?
I note from your question that when you went on maternity leave in December 2015 you made it clear to your manager that you would not be returning to work full time, but instead wanted to return doing 20 hours per week. Your manager agreed to this and after sending an email to him you were informed that your manager had agreed to this with the regional manager but that you would need to fill-in a particular form. I further note that your manager was then relocated within the business and your new manager has agreed to trial the change in working hours for three months but has publicly stated he does not think it will work.
Is the email your employer sent to you legally binding?
Generally speaking, a contract of employment can only be varied with the agreement of both parties. Variations to contractual hours can be agreed verbally, but it is preferable for any agreed changes to be recorded in writing. Variations to working arrangements are often agreed through flexible working applications made by an employee (see below) but they do not have to be. An employer and employee can agree to contractual changes outside of the flexible working process.
I note that your old manager and regional manager verbally agreed to the changes and that you have an email from your employer to say that your part-time hours had been approved. I also note that you received a letter confirming that your hours and salary have been varied (although I am unsure if this was just for the trial period of whether the letter states that your terms have been changed indefinitely) and therefore you may have grounds to argue that your contractual hours were varied and cannot be altered back without your express agreement.
I would suggest that you raise this with your employer and potentially then raise a grievance, depending on your employer’s response. If you have no joy with your employer, I would suggest you take further specific advice about your options.
Flexible Working Request
I note that your employer eventually asked you to complete a form to vary your hours. It is likely that they will try and argue that your contract variation was not agreed previously and that in order to do so you would have needed to have completed a flexible working request.
Any such flexible working request has to be made in writing and your employer must then respond within a three-month decision period. If the proposed flexible working request is accepted then it would be regarded as a contractual variation to your employment and would be legally binding on both parties.
Should the trial period have ever come to fruition?
I note that you are currently undergoing a trial period on the reduced hours. The legislation on flexible working does not provide for trial periods, although there is nothing to prevent you and your employer agreeing to this and I would suggest you review any flexible working policy your employer may have in place in respect of this.
The length of any trial period should be no longer than required to make a reasonable assessment of the proposed new flexible working arrangements and I would advise that it is sensible for both you and your employer to agree an extension to the decision period to take into account the trial period.
Rejecting a flexible working request
If your flexible working request is rejected by your employer it must show that the rejection was due to specific grounds such as the burden of additional costs, detrimental effect on ability to meet customer demand and inability to reorganise work among existing staff. You should also note that once an employee makes a flexible working request they will then be unable to make another one for a further 12 months from the date of the initial request. Employment tribunals do not tend to question the commercial rationale or business reasons behind a decision to refuse a request, but do consider whether the request was taken seriously and assess whether the decision was based on correct facts and whether the reason for refusal fell within one of the permitted grounds.
Legislation also does not expressly require an employer to allow an employee to appeal against the rejection of their flexible working request. However, the Acas Code suggests that employees should be allowed to do so.
If your request (and any subsequent appeal) is rejected then you can complain to an employment tribunal if you feel that your employer didn’t handle the request in a ‘reasonable manner’.
If your flexible working request and any appeal is rejected then I would strongly recommend you take further independent legal advice to discuss your options. Should you wish to complain to an employment tribunal then this must be done within three months of you hearing your employer’s decision. Where a tribunal finds a claim under section 80H of the Employment Rights Act 1996 well founded, it must make a declaration to that effect and may make either or both of:
Indirect Sex Discrimination
As you wish to work part time (due to your childcare commitments), it may also be also possible to argue that that not allowing you to work the hours you verbally agreed with your old manager, amounts to indirect sex discrimination. Unless your employer could objectively justify the need for a full-time worker to do the job, the requirement might well be indirectly discriminatory.
Please be mindful that any claim for sex discrimination should be made to an employment tribunal within three months. You would also need to go through the Acas early conciliation process before any claim could be lodged. I would again advise that you take further independent legal advice before submitting any such claim.
I hope you find the above information of use. Should you require any further clarification on the above points then please do not hesitate to contact Tracey Guest of Slater Heelis LLP on 0161 672 1246.
*Helen Frankland assisted in answering this question.