Obstructive manager: ask the expert

Last year my husband’s shifts at work were changed which meant every four weeks we would both be working two evening shifts at the same time.  We have two children 8 and 13.  As we struggle for childcare in the evening I approached my line manager and asked if I could request officially to move my shifts to an early on the occasions this happened.  He told me there was no need to do this as he could be flexible enough to accommodate this as and when it came around.  So far this year my husband has managed to arrange leave from work when these shifts have clashed. However from August onwards he has no more leave to facilitate this.  I approached my line manager and asked if I could move the two conflicting late shifts in August to an early as discussed previously.  He has refused my request and has denied making such an agreement.  He has told me I have to submit a Part-Time Working form (this has been provided by our HR department) and put the shifts for changing on the form.  I have done this, highlighting the changes required and returned it to him.  He has returned the form to me on a number of occasions now telling me he isn’t happy it has been done properly. He never gives me any assistance and doesn’t highlight where he thinks it has gone wrong.  I am getting very upset by this and I find it hard to ask him questions with regards to the form due to his responses. I feel he is deliberatly obstructing me.  I just want to get the form done and get on with my job.  I handed the form to him on Friday and he handed it back. I have now found out that he is on holiday for two weeks so nothing can happen with the form until he comes back and signs it off.  It also means that I will have to make arrangements for childcare as by the time he comes back the shifts I need to change will have passed.  I have explained my situation to him. I have even said that I may be forced to take unpaid leave if I cannot change these shifts and he has threatened disciplinary action.  Please can you advise me on this matter.

From the information you have provided, there are a number of issues to address; namely:

1. Your application for flexible working

2. The treatment you have been subject to since making your request

3. The action you could take against your employer

Flexible working request

It seems that you have made an informal request for flexible working but that your employer requires your request to be made on a particular form. If it is your employer’s policy for this form to be filled in, then you should comply. However, provided you satisfy certain requirements which will make your application a “formal request” in accordance with statute, your employer is under a duty to consider it. You should therefore take note of the advice provided below and ensure that the form contains all of the required information.

Firstly, you must be eligible to make a request. Provided you have worked for your employer for at least 26 weeks you will satisfy this requirement. Your request must be made in writing and dated and must:

– State that the application is being made under the statutory right to request flexible working;

– Detail the changes requested and the date it is proposed that such changes should become effective (n.b. the statutory provisions for flexible working cover a wide range of working patterns, and this includes changes to shift working hours);

– Explain what effects you consider such change will have on the Company and how these may be dealt with;

– Confirm the relationship between you and the child.

With a formal flexible working request, your employer must hold a meeting with you to discuss the request and then provide a written decision. There are certain time limits that your employer must comply with throughout the process. If your request is granted, the letter must specify the variation agreed and the date on which it will take effect. If your request is refused, the refusal must be based upon one of the certain statutory grounds, e.g. the burden of additional costs or ability to meet customer demand. If you wish to appeal, you have 14 days to do so. If it is genuinely the case that your employer can establish one of the business grounds for refusing your request, you would need to consider your options going forward, i.e. whether it is possible to reach other childcare arrangements or whether you have to seek alternative employment. If the refusal of your request is unfair then you may have a claim for sex discrimination and constructive unfair dismissal (if you choose to resign).

Treatment by your manager

Whilst it may be the case that your previous attempts at filling in the flexible working form have failed to comply with the procedure discussed above, this does not provide justification for the way in which your manager has treated you. By being so obstructive and failing to assist you in filling out your form and by threatening you with disciplinary action, your manager has effectively been victimising you for trying to put in a flexible working request. This amounts to sex discrimination and would be a reasonable basis upon which to submit a formal grievance to try and resolve the issues. You should do this using your employer’s grievance procedure. You should detail the treatment received by your manager and attach a copy of your fully completed flexible working request. Ask for this to be dealt with urgently given that the problems with childcare will arise in August. The grievance should be sent directly to HR (or a more senior manager) to see if they can assist in speeding things up.

If the matter is not concluded satisfactorily in time to assist you in August, you can exercise your right to take unpaid parental leave (emergency leave) in order to arrange childcare. You mentioned that your manager has threatened you with disciplinary action if you take unpaid leave due to lack of childcare, but this would be unlawful. As a parent, you have a statutory right to take unpaid emergency leave in situations such as this. Should you decide to exercise this right, it is unlawful for your employer to subject you to any detriment for doing so (i.e. you should not be subject to disciplinary action, etc). If you are, you can make a complaint to the Employment Tribunal within 3 months of the detrimental treatment for sex discrimination and for compensation for any losses you have suffered as a result of the detrimental treatment you received. You may also choose to resign and claim constructive unfair dismissal.

Causes of action against your employer

If by the end of the procedure your request has been refused and/or your grievance not upheld and you do not believe that your employer has properly established a business ground for refusing your flexible working request, you could have potential claims for constructive unfair dismissal, breach of the statutory flexible working procedure and / or sex discrimination and victimisation. In the event that you require further information or assistance in drafting your request, drafting your grievance or flexible working application or regarding the potential claims that you could bring at Tribunal, please contract Tracey Guest on 0161 975 3823.

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