New manager went back on part-time working

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:

• An order for reconsideration of the request. If it does this the date of the tribunal’s order will be treated as the date of the request.
• An award of compensation to be paid by the employer to the employee, of such amount as the tribunal considers just and equitable, up to the permitted maximum of eight weeks’ pay

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.

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