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Work being obstructive about me returning after mat leave - desperate!

(40 Posts)
LadyThompson Thu 27-Aug-09 10:09:57

I agreed verbally with work last July that I could return to work part time from home. I went on maternity leave mid-Sept 2008 (DC born Nov 08) planning to return mid-July 2009 when my statutory mat pay ceased. A fortnight before I was due to return, I was called into work for a meeting with my boss (it’s a tiny company so no HR or anything) and she said that she was rescinding her offer to allow me to work part time from home as she didn’t think it would work. She also said she never seriously expected me to return to work after maternity leave (even though I always said I would). She said she had expected the girl covering my mat leave would continue in my place. I asked to work part time in the office instead of at home, and she said that even that would be difficult for her to accommodate. I was shocked and upset, but when we parted I said I would think up a compromise and she indicated she would do the same.

On 4th July, three days later, I sent her a summary of our meeting, together with a proposal for how things would work if I was part time in the office. (The girl covering my mat leave only does four days instead of five anyway, so if she would drop to three I could do two, which would be fine). I reluctantly decided and indeed felt forced to take three months Additional Maternity Leave which, as you know, is unpaid, meaning I would return week beginning 14 Sept.

On 7th July my boss emailed to say she needed to think about it all and could we discuss it after a hol I was about to go on. She’d be in touch, she said. (I returned on 18 July).

On 20th July, she emailed to say a close relative was poorly so she couldn’t address her mind to things and would contact me soon.

On 3rd August, another email saying she’d be in touch ‘soon’.

On 13th August, after a chasing email from me, she said she would come back to me with a counterproposal by 17th August at the latest.

On 18th August, she said she would come back to me with a proposal ‘as soon as she could’.

On Mon 24th August, she emailed to say that she wanted another meeting. I replied to say that I didn’t really want another meeting, as last time she pulled the effectively pulled the rug from beneath my feet with no warning (obviously I put it in a more tactful way) and suggested email was more straightforward, or even the phone. I was not being obstructive, but a trip to London takes a full day and costs £27.50 trainfare and I just felt that all of our contact could be undertaken on the phone or by email. Moreover, given that she was not due to be in London until the week beginning 31 Aug I was aware that this would create yet more delay if I waited to see her face to face. I reminded her that if my suggestions of 4th July weren’t suitable, I’d be delighted for her to come up with a different suggestion or even a range of suggestions to discuss. I asked her to come back to me that same day. She hasn’t replied….

I can buy myself a bit more time by taking a month of annual leave from 14 Sept (when I am supposed to return) as my holiday runs January to December and has been accumulating whilst I have been on leave (I doubt my boss realises this) but that will only take me up to mid-Oct.

Obviously I feel like telling them to get lost but I need this job and having worked for them for 12 years, I know perfectly well that my working part time would not be unfeasible.

I am at my wits end. Any ideas what my next move should be?

wingandprayer Thu 27-Aug-09 10:14:59

See a lawyer and getting some sound advice! Does your household insurance policy ahve any legal advice help, or are you ina union or professional body?

Your boss has behaved terribly and is on really dodgy ground as far as employment law is concerned. You need to proceed with caution.

LadyThompson Thu 27-Aug-09 10:18:30

Thank you wingand prayer, it feels good to write it down. I am not in a union, there isn't one for my job, and household insurance doesn't cover me for this.

I am just so upset - it makes it impossible for me to sort out childcare for my 9month old DD, as I have absolutely no idea what will happen.

The really awful thing is that she let me think for almost an entire year that I was sorted to work part time from home. I think she is just trying to get rid of me and after 12 yrs it feels like such a slap in the face.

wingandprayer Thu 27-Aug-09 10:50:00

I am no expert at this so don't take it as gospel, but I thought that the whole point is that they are legally obliged to provide you with a job at the end of your maternity leave. That at the very least it has to be the same one as before you left. If they have failed to do that, failed to discuss options with you, messed you around, and (did you have this in meeting notes?) said they'd rather have the other woman continue, that surely that is constructive dismissal? at worst failure to discuss flexible working without a damn good reason is sexual discrimination.

I'm sure that after 9 months of SMP and no pay since the last thing you need is additional costs, but I think that finding yourself a shit hot employment lawyer would be a very good investment and at least you will know finally and 100% for certain, where you stand, what your rights are and how you should proceed. And keep writing everything down and keeping notes as they will prove invaluable. Your stuipd boss is lining herself up for a very expensive tribunal at this point.

KirstyJC Thu 27-Aug-09 10:57:21

I would go to CAB - they are very good at this. (My sis got loads of help from them in similar situation). Most solicitors have a free half hour session (CAB can tell you who) and they would be able to point you in the right direction too.

It is correct that they have to, at a minimum, offer you back the exact same job you left. Although they are not obliged to make it part time, they have to seriously consider it and come up with a valid reason why not - and this doesn't include 'being hard to sort out'. If the girl doing it now is part time, they don't have a leg to stand on. If they won't even look into part time, then they are breaking sex discrimination laws.

By admitting to you she didn't expect you back, she has admitted that she is breaking the law - she never intended to offer you your job back and she is amazingly stupid to have told you this!!

Get some legal advice ASAP, as she is messing you around waiting for you to go away. (as you know!).

Try here for some info www.adviceguide.org.uk/index/life/employment/maternity_leave.htm

Good luck

tattycoram Thu 27-Aug-09 10:59:42

Oh you poor thing. Definitely go to the CAB as a first step but I really do think you need to get a lawyer onto it. I am no expert but it doesn't sound as if she's got a leg to stand on, but you could do without the stress couldn't you

LadyThompson Thu 27-Aug-09 11:01:47

Thanks again. I have now contacted an employment lawyer and I am waiting for him to come back to me, but I am biting my fingers to the knuckle and just not really sure what to do, if anything, about the fact that she has completely ignored my email of Monday.

I put what she'd said about the other woman in the copy of the meeting notes I sent to her, she didn't deny it. She also complained about paying me SMP whilst on mat leave sad

I guess I should just be patient and wait for the lawyer to come back to me, but I suppose I was wondering if anyone had heard of this before, also, I think I have been a bit in denial about the way I have been treated. It's just such a shock sad

sayanything Thu 27-Aug-09 11:04:59

Lady Thompson, is there a law centre you could call in your area? I'm a lawyer, though not an employment expert and I would definitely think your boss has crossed the line here.

Law centres are staffed by lawyers doing pro-bono (such as people from my old City law firm), so you'll be able to get decent advice for free. I don't know where you live but this should point you in the right direction.

Good luck

LadyThompson Thu 27-Aug-09 11:06:40

Thank you, Tatty and Kirsty. My boss's parting shot at our meeting at the beginning of July was 'oh well, your daughter is worth all the stress'. angry

My trust in them is shattered and my respect for them dissolved, but if she would just let me do my job part time (there is NO reason why this wouldn't be feasible and in my proposal I made suggestions as to how this might operate), I would just go in, do my job and keep my head down.

LadyThompson Thu 27-Aug-09 11:08:28

That is a very helpful site, sayanything. If this other lawyer doesn't come back to me I will contact the people on the site you linked.

wingandprayer Thu 27-Aug-09 11:35:48

From what you have said, and what you have in writing, they are in very serious shit.

Of course though you'd rather just ahve your part time job that the stress of a tribunal wouldn't you? Could you really ever look at this woman with respect again? Could you ever be truly happy there knowing they had so little respect for you?

If you were successful in your tribunal there would be a payout and I'd imagine that lawyer could give you an indication. I'm not a mercenary, I loathe all that blame & claim culture, but this woman has shafted you after 12 years of loyal service because you dared to have a child. I've had friends in similar positions, and when they've worked out how much they would have taken home after tax and child care and travel costs etc, their payout has been the equivalent of a year or more's work. Could you set your own business up and so what you do for yourself? Could you go freelance and work for the competitors (revenge!) have you ever fancied retraining for something else?

wingandprayer Thu 27-Aug-09 11:37:53

Good god my posts are badly typed today. Apologies, take pity, I have swine flu!

pushmepullyou Thu 27-Aug-09 11:55:09

I think it can be a small company problem, where the MD lacks the HR support to explain to them what their responsibilities/obligations are.

I am fairly senior in a smallish company and have had issues with having to work during my maternity leave, not being able to take lieu time we'd previously agreed and them 'forgetting' to pay me my full salary for several months in a row.

Best way forward for me was to state my intentions clearly and in writing (email) to give them chance to object and then just carry on 'as per my email'.

In the absence of a response from your boss I would send an email saying that further to your previous email that your maternity leave will finish w/e 11th September and you will therefore be returning to work on the 14th September as discussed. As you have had no response to your request for flexible working to date you will require a response prior to this time.

In the absence of a response I think you can make one of two assumptions either (and probably most robustly) that you will return to work full time until they have responded to your request. If you decide to take your holiday point out to her in writing that this will be at full pay, as you are a full time employee until/unless an alternative arrangement is reached.

The other alternative would be to assume in the absence of a response that your presented flexible working solution is acceptable and inform her which days you intend to work and basically say 'see you then'. This is probably not a legally supportable way of doing it, but was the only way I could get things sorted out with my company. Turned out they were mostly apathetic so once I took the initiative and ended every email with 'and I'll assume this is OK is I don't her from you by <date>' things got a lot better.

It does seem that they are trying to 'embarrass' you out of a job, but really it's their problem. Legally if you have been on mat leave over 6 months they have to offer you an equivalent (same pay, same level of seniority) job if your exact job is not available. The other girl should have been employed on a temporary contract to cover your maternity leave and, whilst you have no automatic right to work part time, if she works part time then it would be hard for them to argue that there is a 'business need' for you to work full time.

LadyThompson Thu 27-Aug-09 12:00:51

Thanks wingandprayer for your kind support. Especially when you are suffering with swine 'flu!

I would never be truly happy in my job again - absolutely - but I would still rather just do it part time rather than have a tribunal, for these reasons:

1. I have been embroiled in legal shenanigans to do with something else for four years (nothing I have done wrong, I hasten to add, or to do with employment!) and the thought of yet more fills me with dread (as I suspect my employer knows);

2. I couldn't set up on my own part time, it wouldn't be possibly, sadly

3. Or work for a competitor, for similar reasons specific to what I actually (loosely speaking, I work in an entertainment-related industry). Retraining is an option but how to support myself in the meantime? There isn't enough money coming in from DP for me to be a SAHM, you see. He would love to support me I know but doesn't bring home enough for all our costs.

It's a bad time to be looking for another job, both economy wise and from my personal position (only wanting part time)....but I am looking.

flowerybeanbag Thu 27-Aug-09 12:04:51

Have a read here and
here about flexible working applications, including the legal basic procedure you and your employer must follow when a request is made, and the reasons one can be refused.

It doesn't sound as though your employer has followed the procedure, I can't tell from your post whether you have.

I think talk of big tribunal pay-outs and the like is a wee bit premature and dramatic at the moment tbh. You haven't said anything to indicate that your boss has any intention of preventing you from returning to your job or a suitable job on your previous terms and conditions, which is all you are entitled to. However she is obviously making your life difficult and being obstructive about your wish to change your terms and conditions.

I would suggest you write to her formally, making a formal flexible working request under the legislation and requesting she addresses it within the required legal procedure as soon as possible. Confirm that in the event of a resolution not being reached, you will return to work on your previously agreed date of 14 Sept on your old terms and conditions as is your right. You could at this point confirm that you have x days holiday to take which you would like to take from 14 Sept to x date, meaning you will be back on x date.

Putting all that formally in writing including confirming that you will be back full time if she doesn't agree a part time request ought to hurry her up a bit I imagine. At the moment she is probably hoping that by fudging the issue and delaying things, you will give up, and is not expecting you to assert your right to return on previous terms and conditions. Once she realises she will have to pay you full time in a couple of weeks unless she sorts out a part time arrangement, hopefully that will do the trick.

LadyThompson Thu 27-Aug-09 12:05:54

Thanks, pushmepullyou, but I have read that if I do return to work full time whilst they sort if out, this will underminee my application for flexible working.

But I think much of what you suggest is a practical way forward - I think if I don't hear anything by tomorrow, I will email and inform her that I will be taking a month's leave from 14th Sept on full pay, then in the absence of her response to my detailed proposal of 4th July, I will assume that will be acceptable to her and will be returning wk beginning 12 Oct.

LadyThompson Thu 27-Aug-09 12:13:10

Thanks Flowery. We agreed I could work part time AND from home in July 08. On July 1 09, she said this wasn't possible after all (and she never actually thought it would be) and when I suggested part time in the office instead, she said it would be 'difficult'. So I then send a full proposal on 4 July (for me to work part time but in the office), which she is yet to respond to.

As I said to pushme, I have read that if I return to work full time it will completely undermine my application for flexible working - as I would be proving that it will be possible for me to work full time!

Point is, I can't arrange childcare for DD until I know what is happening.

flowerybeanbag Thu 27-Aug-09 12:16:35

Where on earth did you read that? Of course returning full time wouldn't undermine your application for flexible working, particularly where the only reason for returning full time would be that your employer is being slow and obstructive about your request for part time working.

Whether it's possible for you to work full time or not is completely irrelevant. Flexible working isn't about whether an employee could work full time, that's none of anyone's business. Flexible working is about the employees desire to work part time or similar, and it's up to the employer to either agree to that request or demonstrate that they cannot accommodate it. An employer's belief that an employee could do full time is not a valid business reason for refusing a request!

pushmepullyou Thu 27-Aug-09 12:19:15

Sounds like a good idea. My main concern was that if they pushed you in to not going back on time then you could be seen as not having returned which might jeopardise your rights. The holiday might help to get you round this, but I would still be a bit careful as I think you will technically be a full time employee during your holiday (unless you get them to agree to part time first).

I would make it clear that you expect a response to your request by 11th September as after that time you will be back at work, albeit on leave.

LadyThompson Thu 27-Aug-09 12:24:39

Flowery, there is a charity/organisation called Maternity Action: www.maternityaction.org.uk and they seem quite well respected; in their leaflet 'Child-friendly working hours' they deal with not being able to negotiate a successful outcome before you return to work (they suggest buying time by taking holiday at the end of mat leave) but if all else fails 'you should note that if you return to work on a full-time basis you may find it difficult to bring a case of indirect sex discrimination later because you have to prove why you are now disadvantaged by having to work full time because of your childcare'.

flowerybeanbag Thu 27-Aug-09 13:05:42

I have heard of Maternity Action. I agree that using up holiday to try and get an agreement before coming back is preferable, but I disagree that by returning to work full time having exhausted your leave and without agreement you are jeopardising any future indirect sex discrimination claim, purely because it would be clearly demonstrable that you had no other option. Once leave has been exhausted the only other option open to you is not turning up for work altogether, or as you suggest, taking it upon yourself to work as if your proposed change has been agreed even though it hasn't. I'm sure Maternity Action wouldn't recommend that.

Please don't tell your boss you are taking annual leave, request it in the normal way, which I assume means notifying the dates you wish to take and getting her consent. I assume you don't normally just announce when you are taking leave so doing so now is likely to get her back up.

Similarly don't announce that by not confirming that she is either refusing or accepting your request you are going to take that as a 'yes' and come back on that basis. That's not how it works, and by doing that you will be giving her the opportunity to demonstrate that you aren't following a procedure either and potentially disciplining you for not turning up to work as per your existing terms and conditions.

Regardless of how unreasonable your boss might be, it's essential that you remain reasonable at all times. If you do end up making some sort of claim, you don't want to give her any mud she can throw at all.

LadyThompson Thu 27-Aug-09 13:22:31

Thank you Flowery, yes - upset as I feel, I think you are utterly right about MY need to remain reasonable and I shall endeavour to do so.

Maternity Action also suggest buying time by using 'Parental Leave' - up to four weeks a year, but obviously unpaid - if agreement can't be reached. Annual leave is one thing but I would only take Parental Leave if desperate.

Leaving aside what we agreed a year ago, I formally requested Flexible Working on 4 July, setting out what I hoped was a sensible and detailed proposal. That is now nearly two months ago, and she hasn't responded (except to keep telling me she will soon!)

So...shall I just point out that she is not following the regular procedure, request four weeks leave at the end of my mat leave in a non-stroppy way to give me more time to sort out childcare and ask her to respond to my request in writing before 14 Sept as this is the date I am due back? This seems quite easy on her - as the fact is, I CAN"T organise childcare until I know what I am doing.

flowerybeanbag Thu 27-Aug-09 13:33:39

Yes, that sounds fine. Write formally, pointing out the procedure she is required to follow, including referring her to official web references and pointing out where she hasn't followed it, which is basically about timescales at this stage as she hasn't actually refused your request yet.

LadyThompson Thu 27-Aug-09 15:07:02

I have done this and I got DP to read my email to check it was reasonable sounding.

So we shall see.....thanks for all responses, I appreciate it. But feel really down about the whole thing. I hate them now sad and nurseries are hard to get into around here so they've ruined that as well.

zoejeanne Thu 27-Aug-09 18:33:07

Hi LadyT, they are really taking the mick now, aren't they? Two thoughts have just popped into my head which may or may not help at all.

Firstly, don't forget that you also accrue bank holidays whilst on ML as well as normal holiday (you might be more on the ball than me, I'd forgotten and was pleasantly surprised this week), so that will give you a few extra days paid leave to use.

And secondly, have you spoken to the person who is covering your role at the moment? I assume she must also be feeling fairly messed around, not being given a date when she would finish etc. I don't know if this would help your case at all though ...

All the best

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