I currently work school hours two days a week. Since September my eldest child, who is severely autistic, has started senior school in a different county, meaning that school holidays do not match those of my youngest child. I now have to find cover for 17 weeks of school holidays, not 12. Due to the nature of his condition my eldest child will not willingly attend school holiday clubs or childminders. We have tried this in the past and this has caused him great distress and upset as it deviates from his normal routines. The only people who can care for him are myself, my husband or my parents. Due to health issues my parents cannot provide the care that they have done previously.
I requested flexible working to work term times only, but was turned down on the basis that my already stretched department could not cope without me for 17 weeks and could not employ anyone to cover my absence as they would not have the necessary knowledge required or the staff available to cover me.
I feel backed into a corner now. I feel I have no option but to have to resign as I cannot find suitable childcare for my son during school holidays. When I asked my manager who decided this, what I should do, she replied that ‘it was my decision’. I have service since 2008. Is there any legal way I can overturn this decision on the basis of discrimination or constructive dismissal if I have to resign? I feel my case is different to mothers of non disabled children who request flexible working to work term time only, as I literally have no options for childcare due to my sons condition.
I note that you have submitted a flexible working request to work term-time only due to you needing to cover additional school holidays for your eldest son, who is severely autistic. Your employer has turned down your request on the basis that it would have to employ someone to cover your absence. Your employer can only lawfully reject a flexible working request on the basis of certain prescribed reasons, which are : –
The burden of additional costs.
Detrimental effect on ability to meet customer demand.
Inability to reorganise work among existing staff.
Inability to recruit additional staff.
Detrimental impact on quality.
Detrimental impact on performance.
Insufficiency of work during the periods the employee proposes to work.
Planned structural changes.
From your employer’s reasoning, it appears that it does have legitimate grounds for refusing your flexible working request. An employment tribunal cannot question the commercial rationale/business reasons behind your employer’s decision to refuse the request, and essentially, its role is restricted to reviewing the procedure followed, considering whether the request was taken seriously, considering whether the decision was based on correct facts and considering whether the reason given falls within the eight permitted grounds. Similarly a tribunal cannot substitute its own decision as to whether the request should or should not have been granted. This therefore restricts the scrutiny to which your employer’s decision may be subjected. On the basis that your employer does appear to have legitimate grounds for the refusal of your request, any claim for constructive dismissal on this basis would likely be unsuccessful.
You do not state in your question whether you have appealed the rejection. The relevant legislation does not expressly require your employer to allow you an appeal yet the Acas Code suggests that you should be allowed to do so. I would therefore suggest you seek to appeal the decision and try to think “outside of the box” about how you can deal with your employer’s concerns regarding the request. For example, could you work from home during the school holidays? Could you amend your hours?
You would be protected under the Equality Act in relation to sex discrimination and also discrimination because of your association with your disabled son. Your employer’s decision may be indirectly discrimination as it puts you at a disadvantage, although it may well be able to justify its decision. The discrimination legislation allows the tribunal to examine the reason why your employer reached its decision in its consideration of whether the decision can be justified. In order to justify its decision, your employer must be able to show that it is a proportionate means of achieving a legitimate aim. Any claim for discrimination must be submitted to the tribunal within three months of the discriminatory act (here, your employer’s decision) and you would need to go through the Acas pre-conciliation procedures before submitting a claim. If you consider your employer’s decision cannot be justified, I would suggest that you submit a written grievance to your employer setting out your concerns. Should this fail to resolve matters, you should take specific legal advice in relation to your situation.
Should you require any further clarification regarding the above issues then please do not hesitate to contact Tracey Guest at Slater Heelis LLP on 0161 672 1425.
*Helen Frankland assisted in answering this question.