Flexible working turned down - any experts in the law out there?

[RainingCatsandDogs]

I have had my request to leave earlier on the days I work turned down with the proposal from the manager I drop a day instead but leave later on the days I work!

Can you tell me if they were right to turn me down before meeting with me 1st? The compromise they offered is totally unsuitable with regard to the flexiblity I need because of childcare and there is already someone in my job who leaves earlier on the days she works.

Also they haven't sent me any details of my right to appeal just 'they look forward to meeting to discuss my return to work from maternity'.Have they followed correct procedure?

I need to write back .Shall I state that I feel the correct procedure hasn't been followed and appeal or follow normal grievance?

[Washersaurus]

I'm no expert but I am pretty certain there is a right of appeal. Have a look here for some info that may help.

[BetsyBoop]

this is also a good site

[mrshedgehog]

I used to work in HR so have some knowledge but with 15 months off now - I'm getting a bit rusty.

As far as I understand you are entitled to attend a meeting to discuss and there is a right to appeal - but you must request in writing, following company procedure.

ACAS website is useful and they also have a helpline for employees where they will try and answer individual queries.

Good luck

[lemonaid]

They are supposed to meet you to discuss your application within 28 days.

If your request is refused, your employer must explain why. They must give a reason from the eight set out in the law:

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

along with an explanation of why that reason applies.

You're also entitled to appeal. Your employer must hold a meeting to discuss the appeal within 14 days of you giving notice of your appeal. They must notify you of their decision within 14 days of the meeting.

If your appeal is refused, check with your employer that there hasn't been a misunderstanding of the procedure or facts. If there hasn't, you can complain under the grievance procedure in your employment contract.

You can also take your employer to an Employment Tribunal or, if you and your employer prefer, take the matter to arbitration. You can make this type of formal complaint if your employer has failed to follow the procedure properly (for example, by not holding meetings with you or by rejecting your application on the basis of incorrect facts).

So my understanding would be that you can file an official internal grievance and/or take them to an Employment Tribunal for failing to follow the statutory procedures. As to whether that's a good idea or not, you should probably take independent advice. Are you in a union?

[RainingCatsandDogs]

Not in a union! so floundering on what to do.Thankyou for all your help everyone.

Looking at the sites suggested am I right that either they should only have wriiten back to me if accepting my written application but should have held a meeting before writing back to reject it.
They have said in my letter to arrange a meeting but just to discuss my return to work not anything else.

Is this and not providing me with details of how to appeal or their grievance procedure classed as not following correct procedure?

They have given me one of the 8 reasons in the letter but no full explanation.Is this wrong?

I would like to know in case I need to go to a tribunal (which I don't want to do but I suppose no-one does) as so far they are being pretty unreasonable

[chocolatekimmy]

should hold a meeting in 28 days to discuss - out of procedure to turn it down first. You need to get full detailed business justification as to why it can't be accomodated (under the 8 headings already listed).

Appeal in writing, stating why you think it should be agreed

[lemonaid]

They've definitely breached procedure by

• not meeting you to discuss your application
  
  and probably by
  
  
• not explaining why the "business reason" applies (although that will depend what you mean by "no full explanation"
  
  I suspect also by not advising you of your right to appeal, but I'm not sure.
  
  You can try your local CAB for advice, or call the ACAS helpline on 0845 747 47 47.
  
  You will probably have to raise a formal grievance with your employer about their failure to follow procedure and wait at least 28 days (and meet with them if they arrange a meeting, and follow the internal appeals process if there is one) before taking a case to an Employment Tribunal. Normally, you must make your claim to an Employment Tribunal within 3 months less one day from the date that you were refused flexible work. This deadline is extended by three months in some cases if you make a written grievance within the normal time limit for making a claim. However, an extension of the deadline cannot be obtained for all types of claims - therefore the safest course of action is to raise your grievance as soon as possible (but at least within 2 months of the event), wait 28 days then submit your Employment Tribunal claim.

[lemonaid]

I'd raise a grievance about failure to follow statutory procedure AND appeal AND talk to ACAS (actually, give ACAS a call before doing the others as they may be able to help you do it). Nothing wrong with hitting them with all barrels

[RainingCatsandDogs]

It is already 28 days since I applied and got the letter 20 days after the date of mine (posted a few days later).
They didn't mention any timescales to me just to ring to meet to discuss my return to work.

Shall I put in the letter back to them that correct procedure hasn't been followed so far?

Can't see how they will change their minds as the letter states my application has already been discussed with the manager's line manager who agreed it.
Who handles the appeal?
Do I get an appeal then have to follow grievance procedure for the company?_

[RainingCatsandDogs]

Sorry, had some answers while I was posting

[lemonaid]

You have two separate issues, as I see it

1. That they have not met with you to discuss your application -- this one is a breach of statutory procedure and merits a grievance by itself
   
   
2. That they have turned down your application. This doesn't merit a grievance yet because you haven't been through the appeals process.
   
   I suspect that it may be that you need to raise the grievance about their failure to follow procedure, then that should get you the meeting that you should have had initially, and then if they turn you down again you can appeal.
   
   But please, please call the ACAS helpline. They deal with this kind of thing all the time and can help.

[RainingCatsandDogs]

Going to ring ACAS tomorrow.

This is a big high street company so they should know correct procedure.Or at least someone in HR should.

It is really horrible having to go through all this - I'm already stressed and haven't even started the process.

Thankyou for your advice.

[chocolatekimmy]

just one point about going to tribunal with regard to the procedure - all they can do is tell the employer to go away and do it properly this time!

[xoxo]

the equal opportunities website is really great

as is 'working families' or 'maternity alliance'

best of luck

[mamhaf]

Have 28 days passed since your first request?
If not, they haven't failed to follow procedure - they're probably trying to agree an arrangement informally first.
If it's more than 28 days since your written request was submitted,then they have failed to follow the procedure.
But remember you only have the legal right to request flexible working - there are lots of legitimate reasons (quoted by lemonaid) why they can refuse.
Each application is considered on a case-by-case basis, so even if someone else has been granted flexible working, it doesn't mean you will be.

[mamhaf]

Sorry - hadn't read all the posts - I can see it has been more than 28 days.
Imho I'd try to keep it amicable and see if you can reach a compromise rather than raise a grievance.

[CurrantBun]

I do feel for you. I'm going through a similar situation and it's really stressful. I haven't contacted ACAS or anyone yet but wondered if Lemonaid (or anyone else) can tell me if my company are on shaky ground so far?

Before I went on maternity leave I discussed the possibility that I would want to return to work part-time with my head of department (who is also my line manager). I had just been through a difficult time getting him to understand that we couldn't just sack another colleague who was on maternity leave at the time (and requesting part-time work when she returned) because the maternity cover was better at the job than her (!) Anyway, at the time of the conversation he implied that there would not be a problem with my wanting to work part-time.

He recently emailed me about a different matter but mentioned in passing that the part-time arrangement in place for my colleague was no working and that going forward he would not support an application for part-time working from me (at this stage I hadn't even submitted the application) and that someone had to do the job full-time. (I manage a small academic department).

I responded by quoting my right in law to apply for flexible working to enable me to look after my child and copied the email to HR. At the moment HR are trying to find a suitable time for a meeting with myself and my manager to discuss my application.

In the meantime, I have spoken to a colleague in my department who told me that my manager has suggested that I share my job with her (she is currently a lower grade than me and reports to me directly) - and I have also been told that my office is needed for a new member of academic staff and they will need to move me into a shared office with the team I manage. I'm 99% sure that had I still been at work full-time, or intending to return full-time, I would not be expected to give up my office - and obviously would not be expected to share my job with a more junior colleague.

Am I being discriminated against for wishing to work part-time? It certainly feels that way to me.

[flowerybeanbag]

Agree with mamhaf try and resolve it without formal grievance first if you can - you have a right to appeal the decision as well as insist they meet you.

If still no positive outcome, then go grievance route with failure to follow procedure/unfair decision if you feel it is.

If you end up going to a tribunal, if you have attempted to resolve it without a grievance first, you will then have been ultra 'reasonable' and they will have been 'unreasonable', always key in tribunal situations ime!

[flowerybeanbag]

currant bun - changing office v difficult to claim as discrimination - you are not being denied equivalent rates of pay or holiday or denied access to training or similar.

I would put office change down as irritating, and instead concentrate on your flexible working application.

The fact your manager previously implied it would be supported obviously helps you - your organisation will have to come up with an outstanding business reason as to why it is no longer possible.

Re the possible job share, it is not necessarily discrimination to be asked to job share with your more junior colleague. They could split the duties horizontally so that you do all the more senior stuff (I have never seen this work, but that could be the intention), or the plan could be to promote your colleague so that you are both the same level doing the same job.

See what the response is to your request, whether a job share proposal materialises and what form it takes, and then take it from there.

[Judy1234]

I agree with flowerybb.
Have you considered continuing with full time working though? We need more women to do that and more men to request flexible working. Why can't your other half do that. Why are the women always lumbered with career suicide less money and more home responsibilities?

[CurrantBun]

Xenia, I don't WANT to go back to work full-time. If I had a choice I wouldn't go back at all. Unfortunately I don't have that choice as the mortgage has to be paid.

And my husband will be working at home a day a week to look after our baby when I go back to work - so he is working flexibly too.