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I’ve been on maternity leave for 10 months now and am due to go back in a month’s time. I asked for a 3-day block working week in mid April, then 6 weeks later I was told that I would have a 48-hour response time to queries from the business so I may have to do some work on the other two days (perhaps 30 minutes was suggested). I offered 3 1/2 days. Then I didn’t get a response for one month. I’ve since been offered four days, and a change to my job description. I appealed four days in the office and said that I would like one to be working from home as the company has a working from home policy. I even have a password key to access all files and emails online through Citrix, and it’s always been acceptable in the past. I’v been told that this is no longer acceptable and I will have to work in the office as we are a customer-facing organisation. However, most of my stakeholders are at different locations so all contact would be by email and phone. I suppose my question is is this indirect sex discrimination? They have a working from home policy, but are now saying it’s not allowed.
It seems that you have agreed to working for 4 days, but the outstanding problem remains as to whether you can work from home for one day a week. There are two ways to ask for flexible hours/homeworking when returning from maternity leave and it is not clear which route you have chosen. The first way is to make a general request. Your employer is under a duty to consider the request and can only refuse the request if there are good reasons for not being able to accommodate your request e.g. it is not possible to properly do your job while working from home or on the hours you asked for. If their refusal of your request is unreasonable then you could claim sex discrimination.
They do not appear to have given you proper reasons for not being able to work from home and you could therefore appeal their decision and ask them to reconsider and if they refuse again to fully explain their reasons for the refusal.
The other way to request your change in hours/home working is through the flexible working rights under the Employment Rights Act 1996. Employers must follow a set procedure and will only be able to refuse a request where there is a recognised business ground for doing so. There are strict time limits that must be followed in this procedure and a meeting must be held with you to discuss your request. If your employer fails to follow the procedure or does not give proper business reasons for refusing your request then you can claim compensation.
To make a flexible working request you must satisfy certain conditions, such as:
– Be an employee;
– Have worked for the employer continuously for 26 weeks at the date the application is made;
– Not have made another application to work flexibly under the right during the past 12 months (if your previous request was just a general request then you can also now make a request under the ‘flexible working’ provisions. To make the request you must make a dated written (whether on paper, e-mail or fax) request to your employer setting out the following:
– That the application is made under the statutory right to request a flexible working pattern.
– Confirmation that you meet the eligibility criteria.
– The flexible work arrangements that you seek, whether to care for a child or an adult.
– An explanation of what effect, if any, you think making the change would have on the employer and how, in your opinion, any such effect might be dealt with (state that you can make contact by phone and email and as a result working from home one day a week should not adversely affect you doing your job).
– The date on which the proposed change should become effective.
– Whether a previous application has been made to the employer and if so, when it was made. Once the request is submitted, your employer has to invite you to a meeting and offer you the right to be accompanied. There are specific time limits they must follow in arranging the meeting and then providing you with their decision. You will also have the right to appeal if you are unhappy with their decision.
Reasons for refusal of your request are limited and include:
The burden of additional costs;
Detrimental effect on ability to meet customer demands;
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 you are proposing to work;
and/orPlanned structural changes.
It does not seem that they have given justifiable reasons that fall into the above categories because they say your job is customer facing but in fact it can be done by email and phone. You would therefore have a claim for sex discrimination and if you choose to resign as a result then also a claim for unfair dismissal. At this stage I would recommend that you either appeal your first request or submit an application under the flexible working provisions to work from home if this was not the route you initially chose. Also attach a covering letter explaining what has happened to date and that you are disappointed with the way they have changed their minds about what is required from you and their decision to go against their own home working policy. If you would like further advice then please contact Tracey Guest on 0161 969 3131 ..