Any employment law experts out there please?

[NikkiBFG]

Had my request for flexible working turned down on grounds that it would be detrimental to customer requirements as role requires full time presence. I appealed and they upheld their decision but did agree to a jobshare.

I've been looking for a jobshare partner, with their help and they have advertised the jobshare - but only internally. The deadline for me to find the jobshare partner is imminent. I asked them what options I would have if jobshare partner is not found by the deadline. They said I could come back full time, resign or resign on a career break. I refused to do this and said that as far as I understand it, they need to find me a suitable alternative role at same grade/similar duties and/or advertise jobshare externally.

They have not done this and told me today that my old role is still available but only on a full time basis and therefore, they expect me back to work, f/time on such and such a date. Despite knowing that I oinly have childcare for two days a week - hence my request for only two days a week etc. The union is involved but I would be so grateful if anyone else has some advice - surely this isn't right?

Bump

they need to have a good reason why they haven't even tried to recruit externally. is it a small company with restricted funds? Does your role require a lot of knowledge and experience so training would take a long time? You need to ask the question and get their response.

you are only entitled to return to your job, and to request flex working. If you want to reduce your hours and they can't accomodate it, then it is your decision about under what terms you are prepared to return.

oh dear

no advice, i;m afraid, but i hope you work something out xxxx

Its a big company so no reason why they can't find me an alternative role or advertise externally....

Lulu - thanks for that

As I understand it, and I'm not a lawyer, they only have to find you an alternative if you are going back on the same terms. So if you were working full time, they have to find you an alternative full time role or give you your old job back. The request for flexible working is not part of this requirement.

However, you should ask why they didn't advertise externally as it seems a bit odd. Do they definitely not have any other part time roles available at the moment? A big company must have some around.

With a front office job I can understand why they wouldn't want someone part time - but there must be other roles.

Godd luck - I hope they offer you something.

Bumping for Ribena

I have been in a similar situation to this, I was told they would advertise externally twice and if they couldn't fill the post I would either have to return to work full-time or resign and I wouldn't be entitled to redundancy pay! Our union rep was so incensed at this, she asked for legal advice on it from her head office. I never pursued it any further as a job share was found. Have you already been working in a job share position or have you only just requested it? I think it may have a some bearing on your case if you have.

Been working on a jobshare but nothing found....sadly...not for want of trying on my part though.

Thing is, it wasn't advertised externally, only internally so could argue that not everything has been done...also, it is a big company and nothing has been done to try and find me a role elsewhere, except from circulating my CV around...

Am that I've been asked to come in full time when they know full well I only have childcare for two days a week...they gave me one days notice to find something for the other three days....not that I am going to as there is no way I'm going back f/time...but just can't believe that it goes on these days can you??!

Incidentally there are some websites where you can advertise part-time jobs free eg: justparttime.co.uk

mumandworking.co.uk has a very minimal charge around £10 to advertise.

If you are in the public sector, you can register at talentedpairs.co.uk to try to find a job share partner. HTH

sorry crossed posts but I know, crap isn't it - not exactly embracing flexible working is it? Can your union pursue? I know mine would have - as I say, our branch secretary was livid when she heard what I had been told!

Yes they are but..... been advised by them to go in on days I requested to work flexibly (while they are sorting it all out) and say I'm not working full time, but will stay here until such and such a time today etc....stand by for the explosion and subsequent ranting of me on mnet sometime this week....

Give me chocolate!!

I am not sure you should do that as I think it could be interpreted as you accepting a full time contract. Please make sure you check that advice first. There are some HR professionals who post on MN who can probably advise you further on this. As I say I am only posting from personal experience. When is your deadline?

Got to be in tmw.....I did double check it with rep....apparently it could make my case harder to fight if don't go in...will be working the flex hrs though so not going in on full time hours and making that clear when see them.....

well I guess you can only follow union's advice - although might be worth getting a second opinion. Happy to see if I can find out something at work tomorrow and post back tomorrow night if helpful? Can't guarantee anything though as it depends if right people are around. Any good?

I think you should go in and if you make it clear you're not accepting full time hours that's possible. Keep trying to find a job sharer too and they cna try as well.

Thats great - thanks Teddy

Xenia! I thought you would tell me to go back full time...but you didn't!!! are you feeling ok??

Agree with Xenia - make it clear you are not accepting full time hours and keep looking for job share - try websites I suggested if they won't advertise externally. Will see what I can find out and report back tomorrow. Night night.

Nikki, sorry I wasn't around earlier.

The law on flexible working is really complicated. There are two different issues which itersect.

The first is flexible working legislation. This is the law that gives you an express right to request flexible working. As you have discovered, it is quite easy for employers to turn down these requests provided that they follow the proper procedures (letting you appeal, etc). You can sue them if you think that the reasons they gave were not good enough, but the financial remedies are punny and it's basically not worth it.

As a result of the flexible working legislation being a bit toothless, women whose requests are turned down tend to claim indirect sex discrimination. The argument goes like this: women in society are still far more likely to have primary childcare responsibilies than men. Thus, if you make a woman work full time, you are applying a criteria which has a disproportionate effect on women. This is indirect sex discrimination and is illegal unless the organisation can properly justify it.

As you can imagine, this is quite a difficult route to go down. If you tell your employer that you are thinking of suing them for sex discrimination, it can make life rather difficult in the office/work place.

I would personally agree with what your union representative said about going in for the time being but making your position clear.

In terms of taking it further, I think that your union needs to fight your case for you. I think that they need to question two things (not knowing your job):

1. Would it really affect customer requirements? BTW, do you agree that the job needs someone there full time;

2. The fact that they haven't tried to advertise externally.

If you really wanted to get into this on a legal level, those issues could point to a lack of good faith in trying to find a part time position, which could be a pointer towards sex discrimination. The sad thing is that, even if it's true, you can sue for compensation, but almost nothing you can do can actually make them give you the job part time.

In terms of the alternative employment, there is no actual obligation to look for other jobs. That only applies to reduandancy. However, again, it might feed into the sex discrimination issue.

That's probably the best I can help for the time being. Do use your union. They are a really useful resource and know what they're talking about. Even ignoring the legal position (which I am sure is not as clear cut as you probably hoped), the commercial pressures a union can put on a company (no-one wants to fall out with the union) can have an effect. Get that rep fighting your corner!

Good luck!

RB is right. I said go in because you want to keep your job. Another option might be not to go in and claim you'd been constructive dismissed because they'd said the job could be job shared (probably their mistake to say that) and then said they couldn't find someone. If they'd found it couldn't be then you'd have had to go back full time or resign.

In practice it's usually better to try to sort things out so being in there, getting on with people, finding a compromise that works is more likely to be possible if you're there. You might even change your mind about full time. Better pay. More equality at home. Less likely to have domestic jobs foisted on you at home. More status. 100s of reasons why full time better than part time.

surely if they have agreed the role can be done on a job share basis it is up to them to fill the other half of the job share - it shouldn't be up to you!

Titchy - I agree that it should be up to them. But the hard truth is that there are limited opportunities (sex discrimination and constructive dismissal are the main ones, discussed below) to obtain redress if they don't.

And a lot of victories are pyrrhics - she won the case (£xxx tiny sum) and the post script "and she never worked in that industry again" etc, trouble maker branded down her DNA, no one prepared to touch her with a barge pole thereafter.

Thanks for all your lovely advice- really appreciated.

Went in today....stated part time hours etc...was told could potentially be in breach of contract but I held my ground....end result was they are re-advertising the jobshare internally for another period of time. After which, if nothing is found, I have to revert to full time.

I have told them categorically I am not doing full time so will wait and see what this jobshare advert does (if anything) I asked about advertising externally and they have flatly refused with no justification provided - even though I asked and asked. Therefore, I have passed that onto the rep and asked her to pursue that as, as far as I am concerned, they are not doing everything if not advertising externally.

Also questioning the impact on customer needs because a colleague has recently left and they said in the team meeting they may not be replacing her and I'm thinking why are you going on about customer needs/full time requirements etc if you can even consider not replacing her???

I am exhausted now....what a strain! I know one thing though, I enjoyed being part of the workforce today but no way I could do it for more than 2 days a week - have barely seen DS this evening

Hi, hope you are OK - work sounds awful at the moment . I think you are right to stand your ground and also make sure you document everything. You may need to refer to the notes later if you pursue a case with them. It may be worth following up your conversations today in writing?

I did have a word with our union rep at work today and she said same as ribena that as flexible working regs a bit woolly you would have to go down the sex discrimation route. Also she said if they are trying to force you to work full-time and you cannot do that, you may have a case for constructive dismissal as well.

There is some useful stuff on the equal opportunities commission website www.eoc.org.uk - they also have a helpline number. I have cut and paste the following from their website:
Q: 'My employer has agreed to allow me to work on a job-share basis on the condition that I find a suitable job-share partner myself. Is it my responsibility to find a suitable partner?'
A: Once your employer has agreed that your job is suitable for job-share then it is their responsibility to find an appropriate partner for you to work with. This should be done by using the company's normal recruitment procedures. It is not reasonable to expect you to do it. If you are not allowed to job-share because the company has made no attempt to fill the post, you would have a claim under the Sex Discrimination Act. The employer would not be able to justify refusing you the opportunity to job-share on business grounds because they have already agreed that your job is suitable for job-sharing.

Lots of other useful stuff on there about what the law says etc under 'your rights at work' section. Good luck and HTH. Keep us posted.

Good luck Nikki. Keep us posted.