Request for flexible working denied, help me appeal, please

[happydutchmummy]

Hi

I am currently on a years maternity leave, I work in an admin role within the nhs and I requested returning to term time only working upon my return as my daughter has just turned 4.

I put the request in on 6 February, got an acknowledgment email but then heard nothing. On 10 march (more than 28 days later) I sent a reminder email asking if they were dealing with my request. My line manager replied she would chase hr. today she replied saying shed spoken with senior managers and the request was being denied. This is the email

I have spoken to HR, Manager name and Manager name and unfortunately they have agreed that it is not in the services best interest to agree to term time working at present.

As you know, the office at xxxxx is very short staffed and there is a huge backlog so it just would not be beneficial to the service to allow term time working only.

I'm really sorry it's not the answer you were hoping for.

There is no mention of my right to appeal, they haven't called me in for a meeting to discuss this with them, one if my colleagues recently left and they haven't recruited to her position yet.

Please help me with where I go from here as I desperately want to appeal or I will have to become a sahm due to the cost of childcare.

[givemeaclue]

Appeal as per your statutory right

[happydutchmummy]

But should I mention in my appeal that they didn't respond to my initial request within 28 days, that they didn't have a meeting with me, that they didn't meet their legal requirement to inform me of my right to appeal and that the trust I work for has a whole section on parent friendly working in their hr policies which I feel they aren't living upto? Or just do a basic appeal?

[Catnuzzle]

I would mention all of it. They are not adhering to the rules and the more you let them know how you are aware of your rights the better. They also have to give a specific organisational based decision, that they are short staffed and have a backlog is irrelevant to your request. If they can demonstrate that the level of work could not be managed during holiday absences this is different, but they DO have to demonstrate that it couldn't. The onus is on them to provide evidence that your request is not viable, rather than just unwelcome. Hope this helps.

[WingDefence]

I had the same a few years back and I won my appeal.

You need to set something out formally along the lines on the direct.gov website. Basically, as per the guidelines here, they can only refuse your application on certain grounds. unfortunately your rejection may fall under 'the work can’t be reorganised among other staff' but they haven't told you it's because of that specifically.

You definitely need to tell them that they have not complied with the procedural requirements Employment Act 2002 set out here, which you seem to know about.

I can't promise that you'll win but you need to set the reasons why you think the reason they have stated wouldn't be a barrier to you carrying out term-time working, and the incorrect procedure is a separate but related point.

Good luck

[happydutchmummy]

Thanks catnuzzle. The level of work could be covered by either recruiting my excess hours when they advertise for my colleagues vacant post (as they have to recruit to this post anyway there are no additional costs to including my request and i mentioned this in my initial request) or the nhs has a massive staff bank of temp workers (nhs professionals) which would be able to provide someone to cover during the school holidays.

So I don't think their refusal is valid, but I'm unsure what to write in my appeal. At the moment it's all feeling a bit raw and I just want some advice on how to proceed rather than just firing off an email saying you bastards denying my perfectly reasonable request.

[Meglet]

This is useful. I work in an office that should be able to accommodate term time working but I haven't had the guts to formally ask for it.

[happydutchmummy]

Oh, another question


Because they have made a statement to say the reason for turning down my request is because of a back log, is it the case that they cannot change this statement and start trying to throw in other reasons. I know that a back log can be resolved and non-term times can be covered by someone else.

[WingDefence]

I think that your appeal needs to address the specific reason they have put.

However, when I wrote my appeal (I've looked today for a copy of it but it was 3 years ago and I can't find it, sorry) I think I tried to cover each of the areas for possible refusal that were applicable to my position (eg I don't have customers as such where I work).

I think I called ACAS or the Equality & Human Rights commission for some over-the-phone advice too.

[happydutchmummy]

How should I address the specific reason (we have a backlog at the moment and are short staffed). It's not one of the legal grounds to refuse my request on and plus in not due to return to work till October by when these issues should have hopefully been resolved. Do I just write that, or go into more detail about why their refusal is stupid and not properly thought through?

[happydutchmummy]

Please could someone read through my letter and see if it's ok. Feel free to suggest and changes, alterations or additions

Thank you for your email dated xxx

I like like to formally appeal against your decision to decline my application for term time working on the following grounds

You have failed to adequately consider my request within the framework of the Employment Act 2000 as you have spectacularly failed to meet all of the following statutory requirements

You failed to inform me of your decision within 28 days

You failed to request a meeting with me to discuss my application

When declining my request you failed to inform me of my statutory right to appeal the decision

The reason you gave for refusing my request ("the office at xxxxx is very short staffed and there is a huge backlog so it just would not be beneficial to the service to allow term time working only.") Does not comply with any of the grounds on which you can refuse my request within the Employment Act 2000. No specific organisational based decision has been given to me and the fact that the office is currently short staffed is irrelevant to my request as this is an issue that should be able to be resolved before my return to work from maternity leave in October 2014.

In my initial request I mentioned that I was aware that a vacancy was opening up within the department with the imminent retirement of xxxxx thus leaving open the possibility for you to recruit my extra hours to her vacant position, which would negate any potentially negative impact upon the staffing levels of the department.

I would like to remind you that the Trust states that it "recognises that many staff have family responsibilities that need to be balanced with working life" and I hope that the xxxxx department will uphold this sentiment taking into consideration the fact that I have 2 young children.

[WingDefence]

Okay, comments/changes below. Please remember I'm not an expert!

Dear xxxx,

Thank you for your email dated xxx

I would like to formally appeal against your decision to decline my application for term time working on the following grounds:

1) You have failed to adequately consider my request within the framework of the Employment Act 2000 should this be 2002? double check as you have failed to meet all of the following statutory requirements as follows:

-You failed to inform me of your decision within 28 days. I think they just have to have met with you within 28 days and then let you know within 14 days after the meeting?

-You failed to request a meeting with me to discuss my application. Change if needed once you've checked the requirements.

-When declining my request you failed to inform me of my statutory right to appeal the decision.

2) The reason you gave for refusing my request ("the office at xxxxx is very short staffed and there is a huge backlog so it just would not be beneficial to the service to allow term time working only.") does not comply with any of the grounds on which you can refuse my request within the Employment Act 2000. again check ref No specific organisational-based decision has been given to me and I believe that the fact that the office is currently short staffed is irrelevant to my request as this is an issue that should be able to be resolved before my return to work from maternity leave in October 2014.

3) In my initial request I mentioned that I was aware that a vacancy was opening up within the department with the imminent retirement of xxxxx thus leaving open the possibility for you to recruit my extra hours to her vacant position, which would negate any potentially negative impact upon the staffing levels of the department.

I would like to remind you that the Trust states that it "recognises that many staff have family responsibilities that need to be balanced with working life" and I hope that the xxxxx department will uphold this sentiment taking into consideration the fact that I have 2 young children.

Yours sincerely... etc

(Hope my formatting works.)

[WingDefence]

If you think they can turn it against you under any of the other grounds, I would cover these in the letter too. E.g. you mention that they can recruit to cover extra hours but they may turn around and throw the cost reason at you?

Does anyone else in a comparable job work flexibly/term time? I found that citing other examples strengthened my case. I didn't have to name the other people.

[happydutchmummy]

Thanks wingdefence! Yes it's 2002, and thanks for other corrections (you're right they have 28 day to meet me then 14 days to inform me) so I'll change that bit too.

Is there anything else I should add or is it ok?

[happydutchmummy]

Oooh, you answered my question before I'd asked it! They have to recruit anyway as there is vacant part time position so they could just chuck my extra hours into that job at no extra cost.

Despite being a massive Trust I don't know of anyone else working term time only although the trust's flexible working policy is highlighted all over its website.

I can't think of any other reason to deny my request, it wouldn't cost them anymore monkey, I don't have direct patient contact so no disruption to continuity of care etc. I like to think that I'm totally awesome at my job and impossible to replace, however realistically there is a plethora of admin staff on the nhs tempting bank who could cover my job if they decide not to replace my extra hours permanently

[happydutchmummy]

Money, not monkey, stupid auto correct

[WingDefence]

You're welcome. I put the changes in bold but don't miss the full stops and colons I put in.

Apart from looking at the other grounds and trying to cover anything else I would definitely suggest that you find someone, preferably in management and not in your dept, who will go to any meetings with you. I had the deputy director in another department who I didn't know very well but who I knew would be sympathetic to my cause iykwim and talk to them before you put the email in. They may be able to give you some more advice from the inside of the org than we can on the internet. You have 14 days (from memory) to respond with your appeal letter and I don't think (again from memory) that you get a second chance so you need to make it right.

[WingDefence]

Cross post!

[WingDefence]

Oh I've just remembered. I also started my letter with something along the lines of

"I have worked at xxxxx for six years and have enjoyed my time immensely. My work has always been of the highest level [any examples of this from appraisals etc?] and I particularly like x part of my job and have been looking forward to returning to work."

At the end I definitely put something about the fact that if I couldn't do the position flexibly (in my case, working from home) then I would not be able to return to my position but this was something I definitely did not want to happen etc.

You want them to want to keep you on and you also need to tell them just how important this is to you i.e. you will have to be a SAHM in the appeal fails. Don't worry too much about going overboard on this as it really is that important, isn't it :(

[justtoomessy]

Are you not part of a trade union? I had this at my work but as soon as I stated that I had spoken to the RCN they backed down however, I work in nursing so easier to put my fixed shifts in place. I know of no-one that is on the term time only policy and I think they are well within their rights to not grant you this but they may word it differently.

A bit from website

Why an employer can turn your request down

Your employer can't refuse your request for flexible working without a reason. They have to have good business reasons for their decision.
These count as business reasons for refusing a flexible working request:

It will mean extra costs for the employer.
It will make it difficult to meet customer demand.
Your employer won’t be able to redistribute the work among the rest of the staff.
Your employer can't take on any more staff to cope with the extra work created by a change in your working patterns.
The changes you have requested will have a negative impact on quality at your workplace.
The changes you have requested will have a negative impact on performance at your workplace.
There's not enough work available at the times you'd like to work.
Your employer already has structural changes planned.


I had a training session with HR and during it the HR manager stated that the NHS is trying to move away from this as it can be difficult to manage. She stated that she refuses to allow family friendly working because it is not suitable to the working practice of the office. That it means that someone has to pick up the extra work so unless they can find someone to job share then its tough.

I'm sorry but I don't think you will get what you want because by you only working term time it does meet some of the above criteria e.g more costs to employer, work can not be re-distributed (due to backlog), negative impact on quality i.e. new staff member every school holiday not knowing the job well impacting on other staff.

However, I think they do have an obligation to try and find you somewhere within the organisation where you can work term time only. The NHS as a whole is making huge cutbacks though and employing bank and agency to cover the holiday times will cost more than just paying you. Bank rates are higher than your normal pay plus they will take time to do your job properly.

Good luck.

[WingDefence]

Any news OP?

[happydutchmummy]

Hi wingdefence

Yes, sent off my email last Friday (thanks so much for your help! )

I had a meeting with my manager on Tuesday. She was accompanied by a colleague who works in my office and they just tried to explain the situation with staffing at work (person who has retired is not being replaced as cost saving, so office is short staffed and backlog has grown). But they both seemed complelty unaware of flexible working legislation, so after they'd finished their 'it just won't be possible' speech I think they expected me just to accept it.

Luckily for me I had lots of print outs from acas and government website with the proper procedure they should have followed and the official reasons they could refuse. We went through each bullet point one by one and I gave my case against each point for refusal asking them to state how they would argue for each point.

Manager admitted she was completely unaware of the legislation and she was not sure how to proceed. She is now in touch with hr (I copied them into my original email) and the director and they will get back to me with their answer soon.

Hopefully I scared them with my legal knowledge and my awesome preparation but I just have to wait and see.

[justtoomessy]

I don't think their position will change much despite them not following the correct procedure though as they have clearly stated that workload is the resin why they can not change your hours. This fits in with the reason why they can refuse.

[Kundry]

While they haven't followed procedure previously, I still can't see them agreeing to your request. No-one in the NHS works term time hours and saying you can fill with bank staff is not true - they are more expensive than permanent staff and they will not be able to afford to do this.

If they are not replacing the colleague who has left, then they will need you in your original hours to cover the service. While they have to follow procedure in looking at your request, workload and cost are valid reasons to refuse a request for flexible working.

You may have more success with asking for reduced hours every week but I think term-time will be a non-starter.

[WingDefence]

Well good luck happy and I hope you'll be happy at the end of all this!

[BerylStreep]

Is there any possibility of a compromise? I don't do formal term-time working, however I am still able to take the majority of school holidays off by just taking annual leave / DH takes the odd day / some use of holiday clubs.

Summer holidays are the biggest challenge. We cover the 8 weeks by me taking 3 - 4 weeks annual leave (and ideally I don't take them back to back, or even in week long blocks - I will maybe work 2 days one week, 3 days the next to minimise disruption), my DH takes 2 weeks, and we use holiday clubs for 2-3 weeks (and again, I try to spread these so the DC don't get too worn out).

Most holiday clubs accept childcare vouchers, so that might also help with the cost.

You could perhaps suggest something like this?

Alternative suggestions could be you working some of your hours in the evening or weekends when your OH might be able to look after the DC.

I work reduced hours, usually with a day off once a week, and having that day off means I can be very flexible in terms of responding to emergencies (people off sick etc) and it then means that I can keep my annual leave for the holidays.

I think if you show willing to work with your employer and come up with creative suggestions they might look on it more favourably (although some people are just against flexible working. I had an extremely senior manager say to me that he doesn't agree with PT workers - )