Appeal against crappy flexible working decision refused - long sorry

[tangerinecath]

I currently work full time but since July last year, when I returned to work following 8 weeks off with depression, I have been working roughly 50:50 in the office and at home so that I see more of my (now) 18mo dd. I have a long journey to work which meant that I did not see her during her waking hours other to shovel her breakfast down her in the morning and bath her and put her to bed in the evening.
My working pattern is now something like this:
3 days a week - 9.30 to 5.00 in the office and then an hour or so in the evenings after dd has gone to bed
2 days a week - 8.30 to 4.30 working from home.
In October last year I was told that this arrangement had to stop and that I was to return full time to working in the office. I put in a formal application under the Flexible Working Regulations to continue working the pattern above, which was refused because the company has a policy of not allowing home working. I appealed on the grounds that sufficient business reasons for refusal hadn't been given. This morning the appeal was dismissed on the grounds that I do not have the right to work from home.
I have just sent the following email to HR in response:

Further to our meeting earlier this morning, in which my appeal against your decision not to allow me to work from home was dismissed on the grounds that I do not have the right to request to work from home, I would like to draw your attention to the attached link, which will guide you to the DTI's flexible working guidelines. At the bottom of page 8 it clearly states that the right to request flexible working includes the right to request to work from home.
www.dti.gov.uk/er/individual/flexwork-pl520.pdf
I also refer you to the attached link to the Sex Discrimination Act 1975 which states that "A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-......he applies to her a requirement or condition which he applies or would apply equally to a man but-
(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
(iii) which is to her detriment because she cannot comply with it."
www.pfc.org.uk/legal/sda.htm
and to Article 8 of the Human Rights Act 1998 which states that "Everyone has the right to respect for his private and family life, his home and his correspondence." and to Article 14 of the Human Rights Act which states that "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
www.opsi.gov.uk/acts/acts1998/80042--d.htm#sch1
I have been advised by an expert in Employment Law at the Citizens' Advice Bureau that I may have grounds for a claim of Indirect Sex Discrimination based on the fact that any policy (eg a policy not to allow home working) which prevents a woman from providing adequate childcare for her children, that does not have sound business grounds, can be deemed to be Indirect Sex Discrimination. I still do not understand my working from home two days a week and in the evenings as per my original application would cause the company any undue problems. In the six months that I have been working this pattern it has not caused any problems to either colleagues or customers. It is my opinion that the company has not given adequate reason to refuse the request.
I do understand that it is your view that the provision for me to work from home was only a temporary arrangement to help me through a difficult time, however I was not informed that this was the case when the arrangement was first made. Also, I should probably have mentioned this morning that I am still being treated for depression which is not being helped by this situation.
I would ask that you review your decision in light of the information above. I would prefer to resolve the matter informally which is why I'm emailing you now rather than going via a more formal route, however I am prepared to take this as far as I can to protect what I believe to be my rights. I would be grateful if you could let me have a copy of the company's Greivance Procedure, as I feel that this is the next step that I wish to take if you feel that you are unable to reconsider your decision.
I will consider a reduction in hours as discussed, however as I said in the meeting even a small reduction in hours will cause financial hardship. I will not be changing my daughter's childcare arrangements as suggested as she is happy and settled where she is and I feel that moving her now would cause her uneccessary stress and upset. I emailed you last August regarding Childcare Vouchers (www.faircare.co.uk/index.html), perhaps if the company were to subscribe to this scheme it could help in that my childcare costs might be reduced and I could cut my hours?
I look forward to hearing from you.
Regards

So what do you think? Am I sticking up for myself or am I being unfair to the company with my demands? What would you do? Be honest - I can take it

You have put your case very well (I work in HR).

You say "I would prefer to resolve the matter informally which is why I'm emailing you now rather than going via a more formal route". I don't agree that this was informal - it was sent by email, but it quotes the HRA etc. It looks like the first stage of a grievance to me.

Did the company have a face-to-face meeting with you? They ought to have, and they surely will now.

I do not think you are being unfair to the company in any way. You are being assertive, but good luck to you.

tangerinecath, GENIUS! well done you and I'm so sorry you are having to fight this hard for something you ought to be able to just have as of right.

i take my hat off to you, you work very hard already and I hope things pick up x

good luck to you. how unfair they are being

Message withdrawn

[relieved emoticon] Thanks girls.
ClerkKent I have now had two face to face discussions with them, with no shift whatsoever in their stance. I take your point about the email route taking away the "informal" aspect, but what I'm trying to do is avoid more formal, documented Grievance Procedures if I can possibly change their mind by presenting my evidence this way.

what a good email, I have more or less been going down the same route, did the appeal letter and I have just found out today that they will let me do 3 days a week, phew so no appeal process to go through however i did like you go to every website ie EOC and dti and ACAS, I really hope you get sorted out, good luck and stick to your guns!

REally good so far but could you contact ACAS for further advcie to make sure you haven't missed anything?

Sounds good to me.

AFAIK they cannot refuse home working on the basis of it "not being company policy". There have to be sound business reasons for it.

If they have already allowed you to do so for a period of time, i cant see what business reasons they can have. Did they give any other explanation other than its not policy?

what an excellent e-mail. i do hope it all works out for you - let us know.

I've been in touch with ACAS and if I feel that I have been unfairly dealt with I can take the company to arbitration. If the arbiter agrees with me they can make me an award of anything up to £2100 but they can't reverse the decision. I'm still deciding whether or not to go down this route. If I take them to an industrial tribunal based on sex discrimination I can get an uncapped award but it's much harder to prove. Not really sure I can be @rsed with the hassle of it tbh. I'm looking for a job closer to home and hopefully I'll find one before it comes to that. You never know, they might even change their mind - but I'm not holding my breath.

If things had not worked out for me and a compromise wasn't reached and i felt it was discrimination etc, I would have seen it through to the bitter end whether it was an employment tribunal or through ACAS simply because I wouldn't want some other woman going through the same thing, do what you feel is right and if you leave and go for another job then great, its whatever makes you happy and tbh you do have to consider whether it is going to be stressful (would help if you could talk to someone who had been down this route), have you got good support ie your family if you do decide to take it further

Actually, I'd tone it down a bit if you are really hoping to get them to change their minds. The guidelines are just that, guidelines (unfortuantely, I agree they should go further) and all they have to do to turn down your request is come up with 'good business reasons.' - they don't have to comply. Ah, just read that you've already sent it. In which case good luck.

To get anywhere in an employment tribunal etc, you will need to show you have exhausted all internal procedures. If your email produces no response, you should go for the grievance. It's hard work, but stick with it!

Well 24 hours later and no response of any kind as yet - I must have really given them something to think about

I am torn in two totally opposite directions when it comes to deciding how far to take this - on the one hand I think that I want the least amount of hassle in my life and if there's an easy way to walk away then I'd take it, but on the other hand I agree with you Shelly and I should follow it through to the end on behalf of everyone in my situation. I'll just have to wait and see what pans out and make my decision when I need to

WWW - unfortunately I was angry and upset when I wrote the email so it is probably worded a lot more strongly than it would have been had I written it today. Oh well, too late now

tangerine if you don't feel its something you want to take further then don't and certainly don't feel its something you should do for anyone else, I've always been stubborn but since having dd i've sort of become harder in myself and won't take any crap is there someone in hr that you get on with that you can call on monday and have an informal chat, tho I have to say my work were funny i did try calling one boss before they offered me my part time hours and he never bothered calling back, do what you feel is best for you

My interpretation of employment law is that companies have to be seen to be thinking flexibly but they have a cop out:

'certain employees (male or female) have the statutory right to make a request to adopt flexible working arrangements to care for a child'

the employer has a legal obligation to consider any request to work flexibly and within 28 days it must hold a meeting with the employee to discuss the application and any possible compromises.'

An emploer may refuse the request only when there is a clear business reason. These reasons may be: burden of additional costs, unable to meet customer demands, inability to reorganise work amongst existing staff, inability to recruit, detrimental impact on quality, detrimental impact upon performance, insufficiency of work, planned structural changes.

There isnt an employer in the world that wouldnt be able to cite one of these in a tribunal as the reason to stop your working arrangements if they wanted!

You have 14 days to appeal in writing after their decision. The employer must arrange an appeal to take place within 14 days of the appeal.

Dont know if this is of any help at all!

Isyhan - not sure that I agree. In this instance in particular tangerinecath has been working these hours for 6 months. Whilst the company may not have wanted that, the one thing that they haven't managed to prove is any of the points in the list. The request has been turned down on the basis that homeworking is not current policy, which does not appear to be an adequate reason from your list?

yes to be fair I dont know details but could she not say that this has now become custom and practice i.e. by having done it for 6 months successfully.

Tangarinecath, I agree with your approach. That email was very professionally worded - methinks it sounds lawyerly and should work to put the fear of god into your employers.

You said that 2 meetings with them came up against a brick wall. So now is the time to throw chapter and verse at them. Sadly, a lot of employers (even law firm employers who should know better!) get away with murder. The only way to get them to sit up and take notice is to show them you know your rights.

You have 2 weapons of choice: the weaker one is the flexible working regulation because it gives employers the cop out of "business reasons". But if you can show that your current arrangement has worked for 6 months, I can't see how they can claim business reasons for what you are asking for not working. Your second weapon is sex discrimination (which is far more powerful but, as you said, a more difficult route because you have to essentially go to arbitration or an employment tribunal to claim. But a policy that does not allow home working is on the face of it sexually discriminatory (you also said this in your letter) - assuming your employers take legal advice, I think they would be seriously considering coming to a settlement with you.

Either way, I agree that you need to exhaust your internal grievance procedures. You go girl!

2 more points: if the company says that it is not their policy to allow home working, make sure you get that in writing. Also, another cause of action which might bolster your sex discrimination case is constructive dismissal ie the company is making it impossible for you to continue working in the circumstances, forcing you to resign. Just more big words to throw at them. Good luck!

I'm feeling very low today, last night I got my appeal decision in writing, here's what they had to say:

"For the avoidance of doubt, our position is as follows:

1. Your request to work from home is rejected.
2. If you wish the company to consider working arrangements in the context of such a role being office based, then we would be pleased to consider any proposals you may put forward.

Yours Sincerely,"

And that's yer lot. No explanation, no regrets, no nothing.

I'm feeling very torn as to how far I should take this. My gut feeling is to hit them with all the legislation I can think of, not just for myself but for all the other working parents out there who are getting a rough deal. On the other hand, my best way of getting a result is to throw the Sex Discrimination Act at them, and this doesn't feel very comfortable as I don't think that this is down to me being a woman per se, this is down to me being a parent. Also, I have been known to harp on about how this country is almost as bad as America for suing at the first opportunity, so would it make me a hypocrite if I go to tribunal?

I will be putting in a formal complaint using the company's internal grievance procedure, I have no doubt that it will get me nowhere but I have to take this step before I can do anything else. After that, I really don't know what to do next. I just wish it would all go away.

aww tc I'm really sorry, to their second point tho is there anyway you could reduce your hours and perhaps do 4 day a week?? would you want to do that or do you really want to keep things as they were coz if so I would go with your gut feeling when are you planning to go grievance??

and ps I don't think you are a hypocrite, I think its called standing up for yourself and your rights!!! and I wish I could make it go away for you don't let them see how upset you are (and its probably hard I know) is there anyone else at your work who does the same as you ie worked in office and home, how do they feel about it, just take it as far as you feel you can and if its not something you can face then jack in and look for something else, at the end of the day its about your wellbeing chin up love easier said than done tho

You are fully entitled to chase this, if that's what's bothering you. You have tried to resolve it amicably with your employers. They aren't responding and are trying to drive a coach and horses through the law. "It's not policy to allow homeworking" is not one of the stated grounds under the Act.

It's sex discrimination because women still have almost all the responsibility for parenting especially when that requires flexible working. The proportion of men who request flexible working or go part-time is tiny. That's not your responsibility.

tangerinecath, sorry to hear that the company is playing hardball. FWIW, I had my flexible working request rejected and it made me feel sick to the stomach that I might have had to pursue take it up to an employment tribunal. No, it is not hypocritical to stand up for your rights. If you do feel up to it (I know it is doubly difficult to pursue litigation at this time of your life), do it for yourself and your family - don't worry about parentkind .

In my case, I jumped at the option of accepting a different flexible role - so copped out. But if I was thinking of leaving anyway (I believe you mentioned looking for a job nearer home), then I would have been more tempted to fight it out. See how you feel after you have exhausted the internal procedures ...

Once again thanks for everyone's replies - I know that I have every right to pursue this but i'm really nervous about it.

Shellybelly dh & I have looked into me reducing my hours but I earn more than him atm and we just can't afford even a slight reduction in income. Hopefully this will change soon as he is in line for a promotion but in the meantime we're stuck with things as they are. I would dearly love to spend more time with dd.

I have now asked twice for a copy of the company's Grievance Procedure, once last Thursday and once yesterday. I asked by email as I want written evidence of all communication regarding my situation. I have had nothing back , not even an acknowledgment of my emails, so I'm going to ring HR today. Not sure I can trust myself not to lose my rag but I'm going to try to rise above it and be professional.

I am getting so much support in RL too which is helping loads.