Sex Discrimination during pregnancy and maternity leave

[trickySituations]

I'm just returning to work following maternity leave.

I have a bizarrely flexible job which means that some weeks I work in the office for 1 or 2 days and then work evenings and weekends and sometimes i'm full time in the office all week. My contract says I should work core hours 10-4 and that the balance of my hours can be at any time to be flexibly agreed with my employer. However this is not normally the case! I end up working all sorts of hours (evenings, weekends, from home, in office, away) and there's an awful lot of travelling.

I asked for a reduction in hours and it was refused, so now I'm going back under protest. I'd like to know whether my employers insistence that I remain "fully flexible" to working any time (within a range of 8am - 12am) seven days a week with very little notice is unreasonable and potentially grounds for direct or indirect sex discrimination. With such changeable and anti-social hours, arranging childcare will be nigh on impossible.

Any help gratefully received!

If that was the job beforehand then it would be difficult to argue that not changing the job to suit you would be discriminatory - it's not as if they are suddenly introducing new working arrangements that indirectly discriminate against women, for example.

You can request set hours as a flexible working arrangement - it doesn't have to be a reduction - but the trouble is you can only do one request a year so you wouldn't be able to put in a new one now asking for more regular hours if you've requested reduced hours.

Did they have a good business reason for refusing the change you did ask for?

Sorry, but your employer is in the right.

Your right to return is to the post you left. You have the right to request flexible working, but if that is turned down, your only right is to the job you had before.

Your employer does however have to justify the reason for turning down your flexible working request, and if it is not well justified you may be able to seek redress on that. Have they given you a good explanation of their business reasons to turn it down?

thanks!

in my opinion which could be demonstrated by economic models (if they'd let me do them!), no it's not been reasonably addressed.

Job share would cost money, which they refuse to spend.

reduction would not be possible without a detrimental impact on the business, as no one to pick up the slack.

this is despite a reduction of annual budget circa 20-25% and it's not my job to drum up customers to fill the budget loss.

Can i insist that I only work a maximum of 7.5 hours (the balance after the 10-4 core hours) outside of normal office hours, as that's what my contract states?

I should say they've refused to allow me access to any company data (including budget forecasts, finances etc) whilst on maternity leave, including any company property - my laptop, phone, emails, credit cards.

That's not unusual. Why do you need access to a company credit card when not at work? Same with laptop, phone and e-mails - if they're provided for you to fufil your role then your not doing your role so you don't need them. Any of that is not going to make or break your case.

You need to work out if the job is for you now you have a LO. Not all jobs are family friendly and no matter how much flexibility you can get through regulation some jobs just don't lend themselves to it.

Speak to your employer I have a feeling going at this adversarial isn't going to get you what you want.

Sorry if I'm being dim, but I don't really understand the reasons they gave for turning down your request and whether you agree with them.

On job share - I'm afraid it's valid to refuse to spend extra money to put one in place.

Was the only other reason they gave detrimental impact on performance as no one to cover the work? Do you agree that this would be the case?

What are the economic models you want to run and why do you think they would support your case? It's not about whether the company can 'afford' your request, if that's the route you were thinking of (and apologies if I have misunderstood). I'm not really clear why you'd want budget forecasts and finances?

As Grevling has said, although benefits (like a company car you can also use for personal use) continue for maternity leave, use of company property normally used for your duties doesn't.

Hi Ribena,

Because of the department finances changing by 20-25%, there's a direct impact on what work i would be able to do with a reduced budget. My argument was that due to this reduction it would be feasible and appropriate to reduce my hours in line with this. They disagree, but though I've repeatedly asked to see the details (financial, which are key to the argument), they've refused. Therefore, tricky to say whether there would be an impact on performance. In my opinion based on the role as i left it, with the new financial losses, then yes a reduced version of my role could be very effective.

The lack of access is important to me I suppose because it's runs parallel with a lack of access to the business as a whole. There's been no contact, no updates, no KIT, nothing for the last six months, even though I've asked. No notification of vacancies, department changes etc.

It's a very senior post, so virtually impossible to gauge effectively whether their argument holds sway if I can't be informed about what's going on with the business and the impact of the recession on my post.

Regarding my benefits, I thought it was only financial benefits that could be altered under maternity leave?

Grevling, I don't want to be adversarial, but feel like I've been trapped in a corner with this. They're denying me access to my post, my department and data which is important in making a good case for flexi, and then refusing my flexi because they claim it's unworkable, yet they won't let me work it out... IYSWIM.

Additionally, my junior clerk has resigned during my maternity and they've decided not to replace. I wonder who they are now expecting to do her job?

On benefit, pay is replaced by maternity pay and benefits continue, that's correct. However, what they do not have to continue are items they provide for the better performance of your duties only. So, if you drove a pool car and could only use it for business, that would not need to continue. If you have a company car, that carries on. Likewise with your phone, if it was only for work calls they can stop it. If you could make personal calls too, it is probably a benefit you get to keep whilst off.

I see what you mean on the financials. It depends really just how senior you are, but could they get around it by supplying you with the scope of the reduced role?

btw, you said your request has been refused. Have you appealed? If not, it may be worth doing so. That is a good opportunity to put forward compromise proposals. Although, as Flowery says, you can't put in a new request for a year, often people use the appeal to propose compromises.

appeal upheld the original findings of my employer. got the results last week.

they are claiming there is no reduction on my post with the financial loss - according to them it will have no impact on the amount of time required to do my job.

I tried a variety of compromises - all refused.

so, hence why i was looking at my contract again re: the hours and when they can ask me to work outside of normal working day.

I think you're being really unreasonable here. Sounds like they have refused your request on valid grounds and you sound disgruntled and looking for reasons to be disgruntled. If you've returned to work "under protest" I strongly suggest you look for a new job that does suit you - you've returned to work on your previous terms which is your entitlement.

" that the balance of my hours can be at any time to be flexibly agreed with my employer."

If that's what your contract says, and it's what you've been doing before maternity leave then that's what your employer can expect of you upon your return.

thanks Hairylights.

I think what I'm trying to do is find the balance between fulfilling my contract and doing a good job and having a family life. If i'm required to be on call or available to work at any time, i don't have much chance of planning and organising a life outside of work.

Yes, I do understand that some jobs aren't suitable for people with childcare needs, but i think this job could be and am infuriated that I can't get any compromise with my employer.

Hi. Your infuriation does come across. I just think it's kind of wasted energy. Your employer clearly doesn't think this job can be adapted to suit your need to balance your work/family life and sadly you only have a right to request flexible working to suit you.

In your position I think you need to channel that energy more positively in finding a role that does suit you - this doesn't sound like a battle you are going to win - you've exhausted the appeal process and can't now put in another far for another year.

Are you saying you are required to be on call 24/7 at all times?

yeah, you're probably right, but it's so sad. it's a fabulous job and company, just not sympathetic!

and yes, effectively they're saying i should be available at very short notice to work anti-social hours - no overtime, or any recompense to it, except for swapping hours whenever might next be convenient.

How short notice?

My company only allows time off in lieu too - it's fairly commonplace.

i don't know. something might come up and i'll have to go out to a client there and then, or two days notice... it's very varied.

My plan was to offer telephone based advice where possible and go out if i can make a planned appointment several days in advance. they've declined that too.

should be noted that some of the meetings I might attend aren't in my job description anyway, but they made some staff redundant two years ago and I've had to pick up where the gaps are. It's not ideal and has been raised as such, but not dealt with.

"My plan was to offer telephone based advice where possible and go out if i can make a planned appointment several days in advance. they've declined that too."

I could see the valid business reason for doing that if its a change from current.

"hould be noted that some of the meetings I might attend aren't in my job description anyway, but they made some staff redundant two years ago and I've had to pick up where the gaps are."

There will be a clause in your contract to say that you are expected to be flexible to the needs of the business and after two years of doing could be argued now forms part of your contract via customs and practice.

There are some jobs that simply cannot be fixed in terms of hours. My last 'employee' role was at a senior level in M&A and I couldn't dictate when deal deadlines would be determined, or when a client might need me to attend a meeting - it was simply the way the job worked. Some clients were happy to have telephone meetings, others insisted I turn up. It was simply the way the industry works. I was able to do the job only by having very flexible childcare (nanny and au pair), even then I could be asked by a client to get on a plane at a moment's notice.

It is gutting that some really good jobs just don't work when you've had kids, but trying to fight it is like trying to push water uphill. When I resigned I was given access to the Global head of HR (in an organisation of more than 100,000) and spent the best part of 6 months working with the board looking at ways we might improve the situation for mothers in our organisation who were affected in similar ways. And even with a large budget, the buy-in of the board, and all the will in the world down the ranks, it still would have meant moving mountains to solve some of the issues that arise in client-led orgs. To their credit, they made some huge changes to an already enlightened set of policies and I think things will improve slowly, but even in a really motivated organisation it is tough, so I imagine it is impossible to affect changes in a more primal organisation.

Like the others have said, it isn't discrimination (on the facts you've presented), and I think you need to channel your energy differently, or try working with the organisation to find solutions.