Flexible Working Rejected - Legal type advice needed...

[PomsMum]

Can anyone out there help, after having DD1 I returned to work full time, DD2 is now 5 months old and the intention was to return to work 4 days a week. Having put in my request with associated business reason justification etc etc it has been rejected straight away with the usual pathetic reasons. My main query is about following policy - the policy my work has quite clearly states that 'the request will be agreed or a meeting will be held within 28 days of the request being made', and looking at that of the DTI it also says that employers must arrange to meet with employees within 28 days of the request. Obviously no such meeting has been held or suggested. I'm now forced to go down the route of appealing - anyone got any suggestions?

[minicommandant]

I'm sorry to hear that you're being messed around.
I work in HR and on on mat leave myself at the moment for the second time, so brain is a little hazy, but I was treated shabbily first time round, so know how you feel...
In the first instance you need to demonstrate that you are behaving reasonably and following procedure (even if they are not), so that if things do escalate, you are whiter than white. Therefore, I think your first step should be to request a meeting, referring to the policy. Make your request in writing (email fine), just so that there is a record of it and make it cordial at this point. If they won't agree to have a meeting about it, you could then follow teh prescribed appeals process or your company's grievance policy (should be in staff handbook or in your contract). If they do agree to a meeting, you should go to this prepared to hear their side of the story, but also having thought about the various reasons that they could give as to why you can't do 4 days and how you think it could work so that those concerns could disappear. NB They are only allowed to give reasons from a presribed list:
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.

Recent case history has gone in the woman's favour (eg saying a senior role can't be done part-time because it is senior has not been accepted as a good reason by the tribunal). If you are not satisfied after that meeting, you could still raise an appeal/ grievance, but this time it would be about not accepting their reasons, rather than them not following procedure.

A really helpful site is www.businesslink.gov.uk/bdotg/action/detail;jsessionid=FHg2bZ5pcJnhsCJhsQpCYvXv4z5h283nGGv22sjXfnJKy2PDVTv4!-455906741!1162305590104?r.l3=1073931239&r.l2=1073858926&r.l1=1073858787&r.s=sc&type=RESOURCES&itemId=1073791181 which also has a link to a pdf guide from the DTI which is useful

Overall though, if you think there is any chance of getting the outcome you want, I think you really need to keep things cordial and whilst following procedure, not make it feel like you are threatening them with a tribunal. However, in my case, I really didn't think I would get an outcome and there were no good relationships to preserve, so I was doing it to "teach them a lesson!!"

Happy to talk more about this if it helps! Good luck.

[bran]

My flexible working request was rejected and I sent my HR a link to this website saying that I had expected the procedure to follow govt. guidelines. If they hadn't agreed to a meeting then I was intending to send a solicitors letter pointing out that not following the procedure (holding meeting/having an appeals process) could be considered constructive dismissal.

In the end they met some of my request and a couple of months after I returned to work I got another job and when I handed in my notice they gave me the rest of my flexible working request to keep me.

[Boowila]

Ha. Been there. Good luck.

I didn't appeal. But I did want to put my 40 hr week into 4 days when I returned from having DS (my second child). They offered to give 4 normal (8 hr) days and adjust my income accordingly. I said "no thanks".

[PomsMum]

That's great guys thanks, Minicommandant you are the voice of reason, Bran you fall more into my favoured camp!

I'd kind of reached MCs point in my mind anyway. So the letter is being printed as we speak, cordial, pleasant, requesting the meeting that they have failed to organise so far.

Needless to say the reasons that they have given for rejecting my case fall 'within' the list of allowable reasons kind of, not in such bald terms but it all gets a bit blurred at that point doesn't it, and with a bit of HR/marketing speak it seems one can justify anything?!

I've got a few other personal reasons for requesting a 4 day week in addition to the spending time with the kids, so lets see if I have any luck.

There is a bit in our policy about a trial period - generally that they can set one up from thir side to see if its working, any benefit in requesting a trial period do you think or best go for all or nothing?

[minicommandant]

Personally I think suggesting a trial period is a good idea. You're not asking for much to go to 4 days, and I think it would probably be unreasonable of them not to give you a trial period, so that would stack in your favour if they said no and you decided to take it further. And if they do give you a trial period, the onus is then on them to prove it is not working: much more difficult for them!
I hope I didn't sound too sanctimonious before: it's just that I've seen it happen so many times where the employee was totally in the right and the line manager was in the wrong, but because everything got "nasty", then even when the employee ended up with the arrangement they originally asked for, noone was happy with the outcome because there was so much bad blood in the process.
In my case, I was just out to screw them for every penny because I had been treated so badly though, so didn't exactly take my own medicine!!

[PomsMum]

Hi Mini - even more useful info - thanks. You don't sound remotely sanc. to me - it sounds like you won and they were taught a lesson...!!

I expect to be offered a meeting when they get the letter and will approach with caution, I have just been on the 'working families' webiste which is great and answers another of my queries - working families say that the letter which says 'no' should ideally state one of the permitted reasons and explain how this applies to my particular request - another thing that they haven't really done. Being an aggressive type I'm tempted to take in the list of reasons and ask them to select those that they feel apply and ask them to explain their reasons - too aggressive do you think?

Hence I shall ask them to explain their reasons in a way I might understand, let them know of the other circumstances which are affecting the family (a husband signed off work with depression - so not ideal in the circumstances), suggest a trial period of 6 months and then see what happens.

I'm totally mindful of what you say - there's little point in getting what you ask for and then everyone being too cross about it to be comfortable to continue working there.

Do you have an opinion on what happens after the meeting, I assume it will end in a 'go away and we'll think about it and let you know' - I would expect the answer to be 'no' again (they are a stubborn bunch), then I'm at a loss - do I go through the 'official channels' of an appeal, even thought they've failed to follow policy and hence I feel an 'appeal' isn't really the right way to go but then can at least always appear to be 'doing the right thing', or do I fire off a letter telling them I'm taking legal advice straight away for their failure to follow procedure?

Suggestions welcomed! Thanks in advance

[minicommandant]

I think you are right that the likely outcome of the meeting is "we'll consider this again and come back to you"

Then, assuming they do refuse, I've copied this from the website that bran gave the link for (another good one).


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

Now I know that you are likely to have covered all the ground in your meeting anyway, but I do think you still need to launch an appeal (so that if you do end up at trubunal or wanting to get a settlement, you keep on putting yourself in the best light possible), but at the same time, if you can, I would slip in, either at the meeting or when you get the refusal, something like this. "You've been thinking about it really hard and unless there is something from the employer side that you are not aware of that impinges on their decision, then you do not think their response is reasonable or proportionate and therefore you have sought legal advice. Your solicitor thinks that you have a strong case, but has advised you to try to find an amicable solution and that is what you are doing, exhausting all the internal avenues first. However, they should be aware that you will pursue with your solicitor if their response doesn't change."
Not sure how big a company it is or how involved HR are, but in the larger companies I have worked for where line managers did their own thing until they got into trouble, it was usually when the employee said that they had talked to a solicitor that they called HR!!
ALso, at the meeting, I think you should be ready for them asking you what the consequence is of them refusing your request: ie are you prepared to resign and claim constructive dismissal or would you actually go back full-time, but find that you had lots of absences to care for your family or whatever, or you could just sigh and say mysteriously that you just don't know.

Good luck!

PS The underlying reason that I am banging on about you following the process is that IF you did decide to take it to tribunal, you have to create an application to have your case heard, and if they can see straight away that you haven't exhausted the internal channels, they may not be prepared to hear the case at all.

[Twohootsandapumpkin]

PM I really hope you get what you want on this. I too have been there - wanted to return to work p/t after having DD and I was flatly refused. All got a bit sour and I was going to appeal but the union rep was worse than useless I ended up resigning as it was either that or return full time to my previous job. AND I worked for a government organisation who should know better .

There are loads of loopholes in this supposed piece of legislation (which imo is 'lipservice' leg) which allows mother's to request flexible working. The main get out for employers is that they can make up some piffle excuse to say it isn't going to benefit the business / cause too much disruption and you don't really have a leg to stand on

Sorry, don't mean to be negative but I just had such a hard time. Even wrote to the government and didn't even get a reply from some of them and the ones I got just skirted around the subject!

Keep us informed - I'd really like to see you get what you want!

PS - I also found the DTI and ACAS quite good.

[Twohootsandapumpkin]

Sorry should have been mothers' not mother's

[TLV]

got the t-shirt and chucked it as it didn't fit! was refused initially but after a lot of letters going back and fro we came to a compromise (and looking back it was shite) anyway after a few weeks I left to become a sahm and have no regrets tho I do now have a xmas temp job part time. Follow the advice and stick to the rules regarding flexible working and fingers crossed it works out for you

[PomsMum]

Thanks for all the support guys, I've now got my 'employee' who will accompany me into the meeting (which is still yet to be arranged) lined up, a suitably 'high powered' mum who was allowed to go 'flexible' but before the legislation was introduced so didn't have to go through this palaver. We don't have a union so my theory is take someone who is on the ball, respected within the company and believes in the whole family/work balance.

Waiting for a call tomorrow from HR with, hoepfully, a element of panic in the voice when they realise what's happened....(Wishful thinking I'm sure).

HR must have been involved, it can't have been a line manager mess up, my letter of refusal has come from the HR director herself.....(who, rumour has it, was working from her hospital bed after the birth of the second...tells you all you need to know really doesn't it?)

MC - I think I am prepared to resign over this, it would really cause them some problems, far more problems than just letting me work a 4 day week, but hey who knows what goes on in their minds. Although the mysterious sigh option made me chuckle....

Getting a sense of humour about it now, rather than just being livid, even popped into Waitrose to get an application form for full time employment - much to my disappointment they are currently not recruiting - darn....

I'll let you know if I hear anything tomorrow....

[TLV]

most department stores are recruiting for xmas staff, try the good ones like john lewis and M&S and they often offer permanent jobs after, worth considering even if its only short term, wishing you luck anyway

[Pomsgrally]

Pom's Mum's Mum is saying thanks to all. We are currently in Australia, visiting other family and not able to give as much support as we would like -- 11 hour time difference is a " B ".

So thanks to all of you and especially MC, for what seems to me to be cracking advice.

[PomsMum]

Ominously quiet, no call, no mail, nothing to report yet!!!.....

[Twohootsandasparkler]

I am surprised if time is running out? They are probably sitting wondering how to deal with you/the situation..... they have to do everything to the letter (as do you) in case it does go to tribunal or it could be thrown out and they are to blame they'll be in hot water!

GOOD LUCK again - keep us posted

[PomsMum]

Ooooooh got my meeting, interestingly not with the people requested - I tried to bypass my line manager being as he seems to be the one that is so negative about it all and went for the business area head - but hey looks like he doesn't want to come.....

Now have to check if my accompanying employee is available on the dates they've suggested, and go from there. DH is away on both dates they've suggested - shall I submit them an expenses claim for the childcare costs because I'll have to put DD2 with the childminder for the 2 hours journeying time, and the duration of the meeting -or shall I take her with me, request a room to BF and go for maximum disruption??!!

[alibag]

I had a few problems with my request, finding that the company didn't exactly follow its own procedures (i.e. my line manager who was totally up for flex. working was bypassed and the request was dealt with by a v. senior ANTI-flex person!) They arranged my meeting on the 28th day after my request. It was rejected. I appealed. It was granted on appeal with lots of conditions, which I did not agree and were not in accordance with their stated policy either.
I then made a visit to ACAS for a very revealing session with an advisor who was excellent at cutting through all the to-and-fro'ing emails/letters, and advised me on how to write back to my HR people - to keep it cordial, don't mention grievance, discrimination or anything outright but ask questions about their reasons for handling the request the way they did. I don't want to get too much in to detail here, but I wrote a letter and several weeks later with no further meetings my request was granted! I would recommend a call to ACAS if you want some impartial sensible advice!

[Pomsgrally]

Umm -- as the line manager was a player in rejecting your original request, it seems to me that this is lip service to a meeting. The original review meeting, should have taken place before any decision was communicated to you, ie initially approached without too much of a pre decided answer. The meeting now proposed has a person present who has already made the reject decision - not going to play well for the Company if this ever became a legal dispute. Can you politely point this out to HR and try to get a line manager who you think is more sympathetic.
See no way round taking, DD2 - but I would advise them of this in advance, rather than just turn up.

PomsMums parents

[PomsMum]

Update for those interested - rang HR to tell them that I couldn't make one of thier suggested dates, and my nominated accompanying employee couldn't make the other, so new dates have been proposed.

Also asked HR in the meantime why my requested line manager's manager wasn't attending the meeting and they are 'looking into it'.

Also rang LM's manager and asked him if he was aware that I had specifically requested him to be at the meeting and was told that he wasn't aware, but that he could see the problem with only my line manager being at the meeting.

Gently pointed out that process hadn't been followed and felt those Siberian winds blow in.... So lets hope that produces a meeting with a slightly more balanced attendance....

Still not feeling very positive about an outcome but hey at least I'm trying.

[minicommandant]

Hello again,
I think it will be your line manager doing the meeting because they are now trying to follow the original policy. If it goes to appeal and then you follow the grievance process to its end, the company still needs to have lots of previously uninvolved people up its sleeve, so I think they may not shift on this, but will stick an HR person in the meeting too, to make sure the line manager behaves themself.
Personally, I would not bring kids/bfing into this meeting thing as you do want to show them that you are trying to be flexible too

I also nearly suggested ACAS to you. There are various levels at which they can be involved, but definitely a good place to go!

[PomsMum]

Hi MC, you've concerned me slightly now because my telephone call produced results and the meeting will now take place next week (Nov 15th) between myself, my line manager's manager (the one I requested) and someone from HR.

I thought this was quite positive, it seems to suggest that they are taking my request seriously.

And it makes more sense to me to have someone who could fulfil the original aim of the meeting - ie. if not seemingly able to agree my request to be in a position to try to find a compromise that suits all.....

I'm sure there are plenty of 'big guns' left to get involved at later stages if necessary.

I shall leave both girls with the childminder, I'm actually quite a reasonable person at heart!!

Just got to apply myself to thinking about how the meeting is likely to go and rehearse a few scenarios in my head....

And the ridiculous thing???? All I want to do is work a 4 day week......Its not rocket science is it?

[CindyLou]

I was in a similar position - line manager's initla repsonse was two words!!!!, then realised a formal properly considered response was required & panicked as 28 days approached (I reminded him as wanted to appear to be being reasonable) - a mtg was arranged with him and an HR person, and my request was rejected.
I appealed and preapred for battle, but my appeal letter was reasonable etc, and when I went into the meeting with the second line manager and a senior guy from HR , to my surprise they agreed immedialty to a trial period. the trial worked, and is now permanent.
good luck!

[minicommandant]

great news. good luck for the meeting!

[PomsMum]

Minicommandant - you don't live within 50 miles of Portsmouth do you - it would be really helpful to chat face to face before this meeting. Or can I CAT you?

[reno]

i feel really sorry for those of you who are having bad experiences returning to work on flexible hours. Sadly, i cannot afford to do so but our current staffing structure has meant that up untill recently, my boss was keen for me to go part time. Funny old world......circumstances have now changed and i will be needed full time. Good luck to all of you who are battling away.