FUCK. Flexi working rejected

[Sleepybeanbump]

HUGELY long, sorry, but don't wan to drip feed.

Background.
Been on Mat leave since last December. Return date is 14 Dec this year or if I used all accrued leave 31 Jan 2017. I have previously said I would like to do the latter.
I told my line manager informally before I went on Mat leave that I envisaged returning 3 days a week. She was very supportive (obv I know this isn't binding, just giving background) and said she would do everything she could to make it happen.

Around May I had a call with my line manager and head of department for them to talk to me about pay review. I used the call to tell them that I had been investigating childcare and I still wanted to return 3 days a week and I would like to get discussions going as nursery places would be offered in August/September for a December start, and I would need to have my working arrangements firmed up by then. They went away to ask HR about the process and came back to say no can until October/November. I explained that I wouldn't be able to leave childcare arrangements at that late stage and they shrugged. Ok I said I'll just have to hedge my bets and do this in the dark.

I find a childminder I'm happy with who has 3 days available and I sign up with her. I'm also on nursery waiting lists for 5 days and have been since before baby was born.

Fast forward to October and I realise thanks to a friend that technically I need to give my notice to return by the end of the month. I email HR to remind them of this and ask if they're willing to open discussion. They send me the flexible working form. I ask them what I do about giving notice given we haven't agreed my conditions and they say it doesn't matter about giving notice in time.

I fill in the form on a 3 day a week basis (the form only allows one option) but while filling it in informally run some other ideas of out of hours working past my manager which get shot down immediately. So the form gets submitted on a 3 day a week basis with my hours changing from 9.30-5.30 to 9-5, and a request for at least one day from home. After informal discussion with my manager to check what has changed/not changed in the last year re workload I suggest that a job share would be a good way of mitigating impact.

First week of Nov I'm invited in for a meeting to discuss the form. We have a very productive and rambling conversation with is less about the form and more a discussion from scratch about my situation, wants, needs, ideals, and theirs, and some brainstorming of different options. What comes out of the meeting is that there are various options. All seems promising. Atmosphere very friendly.

Yesterday I had a call. Every single option we discussed a non starter. My request rejected. Best offer is 5 full days one from home (no mention of exact hours, I realise this morning so will have to clarify that.) I'm given til next week to go away and reflect.

Now the dust has settled I have a number of concerns:
-Is there any legality around the length of time I have to make my decision? They've just scheduled a call for Monday (and they have made it very clear they expect me to resign then.)
They haven't mentioned giving me the rejection in writing or mentioned appeal process. Can they make me give my answer without giving me that info? Online reading suggests that's best practice but not required.
-What's my situation re giving notice to quit? When's the latest I have to do it? Can I refuse to say either way on Monday?

Can't find these answers on ACAS etc.

I also realised this morning once the shock had worn off they hadn't mentioned the specific hours I would need to work ie if a) they would accept the 9-5 request for 5 days , or b) if there's room for further flexibility ie different hours on different days so can share pick up and drop off with husband (I haven't asked for clarification yet, want to gather self before communicating with them).

There's no way at this stage I can make 5 days a week work as we're so close to my return date. (Exactly why I wanted to discuss it earlier!) My husband would need to submit his own flexible work request on this basis, and I'd have to start from scratch re childcare. While I was filling in the form we were refused one nursery place and have just been told we've been refused another as the waiting list still too long.

To work out whether 5 days is even vaguely viable my husband will need to make a new flexi working request himself (he already does some). We couldn't do this until now as no idea what we might need to ask for. But because they've left this so late we don't have enough time really to get anything else in place. Ditto arranging childcare and settling in- I'd need a nanny share (all we can afford) in place and read to actually start by New Year. Vanishingly unlikely now. Again- couldn't recruit for that before until we had the answer! So feel in an impossible situation. And I CERTAINLY can't establish whether all this is viable or not by next Monday!

Also to make the 5 days work I would need flexi hours, different on different days to share pick up and drop off with husband. That would mean a new request and online reading suggests only one allowed in 12 months!!!??? Additionally if I have to work 5 days I will want to keep my accrued leave to use later so would actually want to go back in December!

I've had max 4 hours sleep for weeks, been ill on and off for a month and just totally reeling from the shock of this. Was so sure something would work out and now they're acting like it's just done and dusted. Manager was all 'oh do keep the door open, hopefully we can work together in the future, you'll be the first person I call if something comes up' and I haven't even quit yet! It's like they just want this over ASAP so they can get on and find some nice easy (dare I say childless) replacement. We've been very close for 8 years (genuine friends) so massively weird. I was at her wedding, she cried with happiness when I told her I was pregnant. Two weeks ago ago she was hugging me and telling me repeatedly how much she missed me. Now she doesn't seem to care much which makes a bad situation even worse.

Any advice appreciated. Annoyingly there's a chance if I do quit that contract work will come my way from them next year so I need to be nice. Otherwise I'd just tell them to stick their bloody job up up their arses. I'm certain I will end up having to quit (fundamentally I don't want to be away from DS that long anyway) but so uncertain what to do now and feel like they just haven't played this fair. The irony is its a massive law firm who started this whole 'we're so committed to flexi working' campaign last year!

Finally as best as I can remember from the phone call the reasons for rejecting everything are:
-Part time rejected as job is full time (how does anyone ever get it approved by that argument ?!)
-Home working not offered as much as I wanted- no reason given. In meeting head of department made disgruntled noises about needing to be client focussed. She works 4 days a week 2 from home ffs!!
-Job share rejected because it will be too hard to find someone (how much do they have to try?), plus something about there being no hand over day presumably because they'd only be willing to pay for a job share for 2 days not 3, and lots of waffle about loss of knowledge in handover process and the work not being suitable even though for years colleagues and I have often shared pieces of work very effectively (I've told them this).
-Change to start and finish hours- not addressed.

Sorry again for length. Don't want to drip feed. Thanks to anyone who reads.

Oh no, this isn't a situation where you try to play hardball! That seems to have put them on the defensive and the jump from 5 to 3 days has made it easy for them to refuse the request.

Sorry, I know that's not helpful as you can't go back and change things, but in case anyone else reading this thread is considering how to approach their own flexible working request, please don't do it this way!

I've just explained I wasn't playing hardball. It was a rather misleading remark on my part that got picked up.

I always swore I would easily quit if I didn't get 3 days. I also felt a part time request would need a job share and obviously a 3-2 rather than 4-1 split is more realistic. So I proposed 3 days. The only bit I went in high expecting to be bargained down over is the number of days wfh which has worked as I expected.

I'm basically now taken aback that they have refused everything so point blank. And also that none of the other options we discussed mutually have worked out. (A key point is that this isn't just about my formal request, it's about all the other options we also discussed which have also been rejected. My formal request quickly became fairly irrelevant and one thing amongst many than were being considered). And that their offer of 5 days doesn't try to meet my needs in the slightest. Not even by half an hour a day. It's like none of the discussions we've had have happened. It's very very strange and probably why I'm finding it so hard.
The problem is my emotional reaction, not the way I negotoated. I went in expecting to find it easy to quit when they said no, and it's harder than I expected. But I think I need to accept that in the cold light of day for months and months I knew 3 days was the max I wanted, and it's largely the shock of how late on this has happened and how black and white they've been that's making me struggle to adjust.
Also I guess part of me thought it would definitely work out. Maybe I'd have played it differently if I'd known it wouldn't but who knows.

In short I DID submit the request which I thought was most likely to work- 3 days with a job share. I got it wrong clearly (although I still would bet good money they'd be better off trying it than trying to replace me but only time will tell on that).

Interesting point re the mat cover. No one likes her, it's openly known that she's not very good, very annoying and extremely odd. Even my boss was openly making comments about it to me the other week.
I doubt very very much they'd keep her as permanent BUT what they might do is keep her on long enough that it doesn't matter if it takes them ages to find someone permanent. Which is a good point.

I really feel for you, is it worth speaking to a union / ACAS? Or is that pointless now (lots of PPs with more knowledge than me on this).

Is there anyone you have in mind you can job share with? In my (large) company they expect you to find a job share partner yourself and submit the flexible working requests at the same time.
One option could be 2.5 days each with a couple of hours handover on the shared day to minimise costs? But the challenge on any job share is you can't expect the company to do all the hard work in finding the suitable partner, unless this is a very standard way of operating for them and there are a bank of possible candidates to choose from.
I feel for you, it's a nightmare trying to find the balance between what works for you, your family and the company. It does sound like something has changed since your informal conversations happened, and difficult for you to know how to respond without knowing what that thing is.

Is the office full of women about to have babies? My boss refused my flexible working request as she didn't want an office full of part timers.

My job was too important to be on a job share, but every other department had job shares. It was all down to one women saying no.

You can fight them, if you win it will be about three months salary I think ( it was capped a few years back, so may have changed) it is not worth the damage it will do your repetition.

I agree though you will really struggle to find part time jobs advertised, I think that they mainly go to staff that the company want to retain.

If the wage is only going to cover nursery cost, I would suggest that you take a year off and enjoy your baby, then go back full time when you feel more able to leave them.

Making it impossible for you to stay even full time (after they have fished for your exact circumstances and stalled you) is constructive dismissal, surely?

It isn't constructive dismissal.

Without meaning to sound harsh the OP is contracted to work FT. She wants to change this. The employer is obliged to consider her request and refuse only if they subjectively believe that they have a good business reason which fits into one of the categories.

Constructive dismissal requires the OP to resign in response to a fundamental breach of one of the material terms of her contract. There has been no breach of contract.

The only way you'd make it out is if the process had genuinely been a sham designed to make the OP leave. It would be extremely hard given that they are more than happy for her to come back on her FT terms or else work 4 days in the office and 1 day at home.

Constructive dismissal is the most difficult claim for an employee to succeed with.

It might be indirect sexual discrimination....but I think that is harder to win than constructive dismissal.
The payout isn't capped though and you can claim for hurt feeling ( more cash) so should make it worthwhile.

All very stressful though. Do you really want to spend six months and potentially serious cash fighting with them?

Another thought for you: you could take some Parental Leave to buy you some more time to sort this out. I'm pretty sure that's what it's called - unpaid leave taken in blocks of full weeks. You are entitled to a certain number of weeks per child until they are 16(?).

Indirect sex discrim is a possibility but the employer may well be able to demonstrate that it's justifiable.

Most discrim cases will cost £10k-£15k plus vat to take to tribunal (often much more) plus you'd be fighting a law firm which wouldn't be incurring legal costs and it's likely to be a lower band case (best case middle band) and so any injury to feelings award is likely to be low. You would therefore be looking at salary losses. It is uncapped but it isn't punitive (which means you don't get more just because they've been shitty), you only get recoupment of your actual discrimination related losses. Plus you are expected to mitigate your losses which means you can't just sit back and let them mount up. You have to show that you've genuinely been searching properly for another job. If you have niche skills then I suspect it won't be that hard to find another job. If after a reasonable period of time you can't find a job in your area/with your specialism then you have take whatever work is available. Most losses won't run beyond two years.

If the employer has compiled with the flexible working legislation though then there's not much chance that they'll fall foul of the Equality Act (although it is possible because the legal tests are slightly different). Their reason for refusing the flexible working application will be used as the justification for the indirect discrimination.

Atticus absolutely nails it - it's why I left even though in my case it really WAS personal.

I'd be wary of receiving the contract work from them, I was pushed into leaving a position and they "helped" the situation by saying I'd receive some freelance contract work after I'd left, I got nothing.

Atticus that's amazingly helpful thank you so much.

Not been online so much for a few days trying to get head straight.

One option that's open to me is to take a career break to have my family and to do a professional qualification (masters) part time by distance learning. I'm extremely unusual in my field to not have it already (got my previous job with my current employer, got promoted and never looked back. A colleague did it around work but I didn't fancy the stress and I had no plans to move jobs whereas she did.) it would make me a lot more employable - although of course balanced by the downside of a career break! It could also give me more option to move to a more part time friendly industry (my job exists in a lot of spheres), so for instance from law to academic.

Friday I was sure I was going to do this and all fired up. But now today I'm just wallowing again and thinking 'but I loved THAT job'. Hunting for nanny shares for 4-5 days just in case. Not promising so far. And so conflicted anyway. Don't want to leave him 5 days. Don't think they'll go for 4 days. They would have already if they were going to ! Guess I just have to suck it that I can't have my cake and eat it! That's motherhood, right?

Sleepy never say never !
So many people go back - prove themselves and then negotiate better - truly have seen this loads

Really- I can't do more to prove myself. I've been there 8 years, been doing really well. Have always gone the extra mile and put in the hours. Had fantastic appraisal just before I left. Spent the year I was pregnant dealing with difficult situation and really going above and beyond. Working at the top end of my job level. Boss went on about how she didn't know what she'd without me, she'd do anything she could do get me back. Even two weeks ago hugging me and saying how much she missed me (really genuine, not just polite). If the last 8 years count for shit (her, someone else, can't work it out) I can't imagine what I could do once I go back that will change anything, especially as I'll have to be clock watching for the first time.

Hi Sleepy, I know this isn't the bit you posted about ( I can't help on the legal/flexible working request side, although i'm also in the process at the mo) but re your DS's separation anxiety, it's a phase, they do grow out of it! DS is just coming out the other side and it's such a relief.
I do think your idea of a career break + study sounds most sensible.

OP can you take a 12 month sabbatical with your employer on the understanding you'll return FT at the end? They don't have to keep your job open, but if there is a need for you at the end you can take up the role. You could spend the year settling your DS and deciding if you want to pursue the contracting route?

Re parental leave, I have just had an almighty battle with my (FTSE 100, employer of choice for parents blah blah) employer to get parental leave agreed. It's a max of 4 weeks a year, taken in 1 week blocks until age 18 (18 weeks in total). Reasons for taking it have to be child related, such as spending more time with your child. I'm not sure if it could suit in this context, it's more a prop for working parents over the childcare and education years.

Sleepy -I've done both - worked full time and been a SAHM - the biggest difference -working full time I missed DC and couldn't wait to spend time with them and always planned stuff to do with them.
As a SAHM I couldn't wait for a break from DC - was much less keen on planning exciting days out. I took a career break and am unemployable in my field now...
I would go back FT (if you can get childcare -if nec take annual leave for the extra days whilst you sort it) and then look for another job/try and negotiate with them again/find a job share once you are back.
I do think the ideal is part time 3 days a week but then I've never done that and the grass is always greener...

I meant to say maternity leave is different than being a SAHM -cos you want to make the most of the time you have with them before you go back to work - if you know you are not going back to work in the foreseeable future it is a different mentality.

Unlucky- yes, I'm seeing a clear difference already! I can see the days / weeks next year being very slow with no end in sight. That said we do a lot of activities which I would continue with so the days shouldn't drag too much and virtually all my mum friends are returning part time so will be around a lot. I'd also be studying so would have something else to focus on and my DH would have to do some childcare. Working full time will mean never having much time to do stuff with him except on weekends when you're already knackered and fighting backlog of shopping, cooking, laundry etc. Exactly why I want that balance.

I've spoken to recruitment consultants and I think the chances of finding anything part time elsewhere is slim anytime soon. My bargaining power was that I thought my employer would prefer to put some serious effort into finding a job share than losing me and risking another 18 month struggle to recruit a full time replacement

I've asked about sabbatical early on and didn't push it as was told they only do 3-4 months max, the policy was very vague, they hardly ever do it and I wanted to focus my energies on the flexible request and not muddy the waters asking for too much. I've informally asked again if there's any scope for me to take an extended unpaid break while I get this sorted (they could just keep my mat cover on for while). They've said 'let's discuss it on Tuesday'.

It's so hard especially when you have it settled in your own mind how you want it to work. Law is not friendly to flexible working. If you quit - bear in mind the challenge of getting back into work. Unless you fancy a PSL role on lower pay, then what are the options. Contracting isn't a great option - they are not PT roles, you will just end up going from contract to contract and wondering how to cover your nanny's salary for the in between times when you're not working. I hope you come to a workable solution.

I'm not a lawyer sadly. If I was being a PSL would do me fine! All ours have wonderful hours!! And much better pay than mine :-)

Sorry I misunderstood!

Legal specific job though and all my knowledge and experience is absolutely specific to the legal market. So your advice is still relevant. I'm wondering whether it's the time to think about how I can do a similar job in a different industry.