Need urgent help from Employment lawyers out there!

[jodan67]

Hi there. I am new here and need some advice. I am a solicitor but do not know very much about employment law.

I am due to return to work in two weeks time after a year's maternity leave. I am now using up the leave that I accrued over that period. Due to the circumstances of my child's birth he is still under the care of a paediatrician and a follow up has been arranged for later this year. We doubt there are any long-term issues but some developmental milestones can only be assessed at the 18 month mark. As a result of this I applied to worl part-time until such time as my child is discharged from care.I do ot think that my child's needds will be bset served in a nursery environment as any problems are unlikley to be picked up early enough. Needless to say my request has been turned down. I say this becuase my firm's attitude really changed towards me when I was pregnant. I was no longer included in decision making, despite being a salaried partner, and was treated as though I did not exist. I was also treated very rudely by certain staff memebers. They have replaced me as well and my desk is now being utilised by another fee-earner and my secretary is now doing para-legal work elsewhere in the firm.

Anyway I have appealed their decision and am due to meet up with the partners next week. The problem is what do I do about my return to work? I am on a three month notice period. According to my understanding, they will have another two weeks from the meeting to consider my appeal. That takes me into the time I am due to return to work. Will I have to return full-time until they decide? What if there is no desk/secretarioal cover for me if I do have to return? Would that be considered constructive dismissal as I have the right to expect to return to a similar situation I was in preior to maternity leave. Also if they come back saying that I cannot have part-time, do I resign and claim constructive dismissal and sex discrimination or wait for a tribunal to decide? I do not want to face a breach of contract suit.

Could anyone help? Thanks a mil!

Did you apply formally under flexible working? Hopefully you have covered what you need/why as well as how your new hours will work at the company - offering possible solutions to any issues that may occur by you going part time (like temporary cover or a job share or distributing workload).

Can you clarify their grounds for turning you down as well please. There are 8 reasons that they can use and they need to explain the business reasons behind it.

You are right that they have 14 days to hear the appeal then 14 days to let you know the outcome. Potentially you will have to return to work full time.

You are entitled to return to the same role (unless not reasonably practicable - say the role no longer exists) and same terms and conditions as before.

I suggest you ask for clarification regarding your role, your desk, your secretary etc so you know exactly what is going on when you return.

Constructive dismissal - there has to be a serious breach of contract such as a breakdown in the implied trust and confidence that is so bad that you can no longer work for them - the relationship has to be untenable. Can't say that this would be the case for turning down flexible working - again depends on the reason they turned it down.

Have you got details/dates/names etc of the crap treatment that occured whilst you were pregnant as that would be useful.

You would have to follow the formal company grievance procedure to try and get a resolution to the issues and only once that is completely exhausted could you claim constructive dismissal. (but note that something so serious, even if its one isolated incident, could be enough to undermine the contract and cause you to resign instantly - though you would still be expected to raise a grievance formally after leaving!)

Might they be saying you are redundant, is it something you would be willing to consider at this moment in time - possibly a compromise agreement with a pay off?

Sorry about your childs issues, thats enough to worry about no doubt as it is.

Thanks Chocolatekimmy.

Yes I applied under the flexible working act.

The grounds they used for refusing me were largely under the headings relating to continuity. I Have replied and reminced them that when I lived in LOndon and commuted to work they were happy to accept, what amounted to, at times, a very happy acceptance of reduced working hours. By the way, at this stage I had left the firm and they were trying to coax me back and therefore were happy to pay for the train fare (£3000.00) for six months and put up with the up and down work hours. Very often the reduced working hour week would be a 31 hour week, although there would be some weeks when a closer to a 35 hour week. The partners were happy then though.

The crap treatment started shortly after I announced my maternity. Unfortunately I have not kept a diary but have retained copied of crappy e-mails.

Yes I would consider redundancy. I hate the idea of trying to return to a place that actively does not want me.

What do you think?

I think you need to get good advice from a specialist, especially regarding what you actually can/can't do in terms of refusing to return. I'm not a lawyer but I think it might harm your case if you rely on just not having a desk/PA as reason for refusal - esp as you have done AML on top of OML so they didn't have to keep your job open. They could claim they have an equivalent job that doesn't require you to have a PA for example. I think your case probably stronger on the refusal to consider flexible work request - I struggle to see how they can't allow it given the type of career you do - you just run with 40% fewer cases or whatever.

Try Alison Downie at Bindmans - she is apparantly one of the best 020 7833 4433 . I used them once (not Alison though) for employment advice and my company at the time (Arthur Andersen) backed down instantly when they knew Bindmas were acting for me.

Good luck

You can get good guidance from DirectGov . It would be sex discrimination if a man's request for similar hours was treated any better.

After AML, a company does not have to offer you the same role, just something similar. I don't think a tribunal would have much sympathy with you over the desk issue, although secretarial cover is more significant in terms of a similar role.

It's amazing how often law firms fail to follow employment law! Good luck.

Jordan, if they have genuinely justified the business grounds for refusing your request then you may be stuck. Is what they are saying accurate in your view?

I think people need to remember it isn't an automatic right and there will be times when the business can justify saying no. Have they considered temporary cover or a job share or outsourcing etc.

They sound like they are being pretty mean in view of your particular circumstances but again I think you should get some advice. Check your home insurance cover to see if you have legal expenses as this would usually cover employment law issues. Your case is made more complicated by the way they have treated you anyway. The difficulty is trying to prove it and based on this I'm not sure you would have enough to go on.

Can you cope for a few weeks if you return to work, could someone help out temporarily? This could be an opportunity to see how it pans out and how they treat you. They may be thinking you will just resign, this could be like calling their bluff. If you receive more poor treatment over the first few weeks, it could build up a case for unfair/constructive dismissal.

Remember that you have the right to unpaid time off for dependants. There is no limit on the frequency of this but be sure to follow the company absence reporting procedure each time. This would allow you to take odd days off (1-2 days to deal with incident or arrange alternative care is considered reasonable) or a leave early for example for your child.

With regard to what job you return to after a year, there has to be a valid reason as to why your exact job no longer exists for them to say you can't return to it (for example redundancy, restructuring). They can't just say no because they like the person who's been covering it more than you for example. An alternative role has to be on no less favourable terms and conditions too. That relates to pay and benefits etc as well as duties so if for example you manage a team and have decision making responsibilities or budget control and the alternative job is more mundane without those responsibilities you could argue that it is LESS favourable on those points (even if they maintain your salary).

I do sympathise with you. I'm waiting to hear about my flex application following a meeting Tuesday with a crap boss (who see's me as a threat and would love me out of the picture!). Been offered a 'project' role which would be a sideline and detrimental to my career but I am sticking to my guns.

Knocks your confidence doesn't it this reproduction thing and time off from a career!

Thanks ladies for your advice. I have checked my insurance but I have no legal cover so it is very difficult to employ a solicitor to advise me as money is so very tight, now that I have been unemployed this last year.I did phone Bindmans but they don't really offer no-win-no-fee.

I have considered the reasons given by my employers for refusing my application and at first glance they seem reasonable. But when you look at the points they have rasied more carefully I do not believe they are valid. For example they say that it would prove difficult to supervise and review junior members of staff's files, but they never asked me to do that whilst a partner and before I went on maternity leave. Also taking calls from cliams company touts after hours, which I have never agreed to nor done. Continuity and client care was also mentioned, which I cannot understand why they would be compromised. I did state in my letter that although I was looking for a three day week I would also be prepared to consider working mornings only which would address those issues. Also as I mentioned, I have previously worked less hours and there were no problems. Also as I said it is only for a limited period until my son is, hopefully, discharged from medical care. This is all designed to make me resign. Even my request for childcare vouchers was turned down as "the book-keeper said it involved a lot of paperwork". I am so upset by all this and it is clear that there is no genuine desire to see me return to work. In particular, I went into the office during maternity leave to help out on a file which was going to trial and was ambushed my the prtner accusing me of costing the firm a loss of fees through a mistake allegedly made by me on the file. I llooked at the file and was able to very quickly show that the mistake was, in fact made by the other partner. The topic was then dropped with a remark that the firm would in that case need to take the loss on the chin. I shudder to think what they would have done had the mistake been mine...probably sued me for professional negligence.

In this same meeting the partner asked what my intentions were regarding my return to work. When I advised that is very difficult in light of my son's ill-health at birth, the partner shrugged and said that I might want to postpone my return from leave. When I asked whether he meant for a few months he said that a further year was what he was thinking. Cash flow was cited as the reason. When I advised that I would lose my right to return to work he just shrugged his shoulders. I actually think that he thought i might naively have taken him up on his "offer" to my detriment.

My major concern right now is the meeting next Monday and the fact that I suppose I shall need to return to work for about a week before they are obliged to give me their answer on the appeal. I have no family in this country and husband is away a lot for business at the moment so I shall have to see whether I am abke to get a full-time place for my son for a week, which I hate to do to him as he is struggling with just two mornings a week now.

I cannot believe that they are treating me so poorly, especially as they chased me to return to the firm three years ago when I left to work for a lOndon firm. Then they were more than happy to be flexible, but now...No.

Anyway thanks again for your advice and good luck with your flexible working request chocolatekimmy! Thanks

What a nightmare.

Its tempting to say call their bluff and return to work and see it through but you have to think about yourself and the additional stress it would put you through as well as the needs of your son.

You have a lot of evidence against them. You also sound switched on by the way you have described events. It does sound like they want to force you out of the business and it isn't right.

Now could be the time to raise all of your points in a formal grievance letter, stating that you believe their intention is to force you out of the business, how undermined you feel and that you feel as though you may have no alternative but to resign if the issues are not addressed and a resolution found. You will need to know in your mind what you want out of it. This, I would hope, will set alarm bells ringing for them that you may claim constructive dismissal (don't use that phrase in the letter though) and potentially they may look at offering you a compromise agreement to go.

I don't want to encourage anyone to 'shaft' their employer without good reason, particularly with the compensation culture as it is anyway but I also dont' like to see people treated badly. It needs to get tactical now really if you want to try and fight for the 3 days or you could just walk away, focus on your son and look forward to a better experience in the future.

I would normally countenance being very careful before taking things a stage further - I have had two occasions myself when I've done it, once when Andersens backed down really quickly and once when I fought for a whole year with solicitors before they admitted everything and paid me off, and it was most stressful period of my life.

That said, I entirely see where chocolatekimmy is coming from - they are treating you appallingly. I would definately write out a formal letter, stating your reasons why you are upset and the reasons why you feel their business case for full-time is not valid, and see what happens.
Most employment solicitors (and all the big London ones) do not charge for the first appointment, so maybe you could prepare a draft letter than have an initial appointment with someone. It would only be for an hour but even in that hour if you have all the facts ready and listed in a letter they'll be able to advise if you are in a strong position. If so, most stuff can happen without a solicitor - sites like the Equal Opportunites Commission have plenty of info and I think offer a free advice line.

Thanks Squiffy and Chocolatekimmy.

I phoned Russell Jones and Walker and had a long chat to a solicitor yesterday and she very kindly gace me some pointers and advised that I raise a grievance, which I shall do at my meeting on Monday. Bottom line is she thinks I have a very good case but the cost of employing a solicitor to take my case to tribunal stage would be extremely expensive and you cannot recover your legal costs in a tribunal. The potential benefit to be gained would probably be wiped out by the legal costs.

I have resolved to do things by the book, return to work full-time for a week until such time as work decides finally on my part-time application. If they turn me down then I shall resign and hope that they put me on garden leave for the three month notice period, which I am sure they will if i initiate an action against them. I shall probably need to proceed by myself. I have looked at the EOC web-site which is brilliant and think I can do a lot myself. Heck if a solicitor can't do it by herself, who can?

That sounds more positive.

Don't be afraid to represent yourself at an employment tribunal - even if the respondents have top legal bods the chairman of the panel (legally qualified) will ensure a level playing field and point you in the right direction and give you guidance if necessary. I am sure you are good at presenting written facts and putting a statement together.

From now, ensure you record detailed notes of converasations, actions etc as this will be important if you take a case against them. As you know, you have to do a formal grievance anyway. Also make sure you don't deviate from the process/company policy in anyway.

I'm not legally trained but have prepared cases both for my employer and also for my brother (unfair dismissal/disability discrim) - its not too difficult to do.

You might also be able to get free representation, talk to the CAB for information on an organisation they can put you in touch with.

just wanted to wish you good luck. how do these people sleep at night?

hope you are successful and they and the rest of the legal profession learns a good lesson.

Good luck and bon courage!

Thanks ladies.

I ahve the meeting tomorrow and shall hand them my formal grievance letter as well then. I will let you know how it went.

Hope it goes/went ok - let us know

Well you just won't believe it- they completely capitulated. I am in shock! Essentially I went in to the meeting in a very punchy mood. I had run through various scenarios so often in my mind that I felt a little detached to be honest. Anyway they have allowed me one of two options:

a) I can return part-time until my son is discharged from medical care and then go on to full-time (which is what I wanted); or

b) I can return full-time when I want on one months notice up to January 2008. This gives me longer at home and should I return to work and issues arise at least I will fight for compensation on a full-time salary.

I am waiting for written confirmation of offer and underftaking to give me a job despite not being on maternity leave and then shall sit down and think it through......there has to be a serious catch here

What do you think ladies? I must be missing something here. One of the secreatries did tell me that they were running around like blue a*d flies when they receievd my letter.

Good for you

However, I might suggest you keep a diary of things, because whilst they have revoked their original decision, I suspect the thoughts surrounding it are still there. You may yet find yourself being discriminated against so be prepared to keep records of incidents, conversations, and problems.

Going to tribunal neednt cost you a thing, btw. I did it. Admittedly I had help and advice from a friend who was a trainee solicitor in employment law, but, I would imagine that as a solicitor yourself, it wouldnt be difficult to research the information and precedents thta you would need to take your case forward and represent yourself. Just a thought.

Jordan, what a result. Isn't it funny when we fear the worst and get worked up about it and then it turns out good.

Make sure the wording is correct in the written confirmation, I suggest you confirm in writing that you agree to it, even if they dont' ask you to sign anything.

Also, check how your employment will be deemed whilst off - for instance will it count towards continuous service or will it be a break in service (relevant for severance if it comes up in the future) and also how your benefits are treated if you have any like holiday pay, medical insurance etc.

You won't be able to apply for flexible working again for a year from when your current application was recieved.

hurrah! good for you! i am so pleased!

celebrate but ca'canny (not that i am scottish!) and do what chocolatekimmy suggests!

i am really thrilled for you. it takes guts to stand up to employers but when a woman does - all women benefit. be very proud of yourself!

Thanks ladies. You have all been a huge help and so supportive. Thank you for that!!

I need to look into things quite carefully and sit down with hubby to consider the options. I am inclining towards a full-time return a little later in the year, perhaps December, money permitting. I am concerned that if I go part-time and issues arise, then any compensation will be assessed at part-time salary rate and not my full-time rate.

I am just so pleased that I fund mumsnet as the support and help has been invaluable!

Glad its been helpful, thats what we are all here for I suppose.

You are right about the full time salary rate v part time if you find yourself in a 'redundancy' situation/compromise agreement in the future.

Hmmm ladies it was not the victory I thought.

Received a letter from my employers setting out the options. The problem is that the option offering part-time requires me to take calls from salesmen after hours. I have asked my employers to clarify their expectations in this regard as I cannot take calls when I am caring for my son in the evenings.(You all know what it is like in the early evening hours with hungry drizzly babies!) I also advised that I am not happy to be on call in the afternoons as I have requested part-time work and the moment i start taking calls I could be on the phone for half an hour at a time. If I taek three to fours calls then I lose my afternoon with my son. I received a response from the one partner on Friday evening but no clear guidelines just, again, a call on me to take calls after hours.

Am I wrong here? Surely you cannot expect thos level of commitment from a part-time worker? ALso on a part-time salary? I am supposed to give them my answer on Friday but really do not have enough idea of what their expectations are to enable me to consider my options properly. I sent another urgent e-mail in Sunday night and have yeat to hear from them. I think they are deliberately not coming back to me as they probably don't want to put their demands in writing. These demands came out in my previous meeting with them but I thought it was only applicable should I elect to go back full time.

What should I do? I was thinking of advising that I am not in a position to acceprt the "part-time" proposal as it is not in reality part-time and lodge a grievance.

Does anyone have any advice for me here? Also if I do take calls and the time spent on the calls takes me to a position where I am doing the hours of a full-time worker would I have the right to insist on a full-time salary?

Urghhh I really feel like they are trying to trick me into working a full-day for half pay!

Crikey, aren't they awful?

Have you tried offering to take a pay cut in exchange for working fixed hours? This seems to be the way a lot of law firms are prepared to go.

As full time lawyers generally contract to work e.g. 9-5 plus whatever additional hours might be required, it is logical that someone on 3 days a week should also make themselves available for extra hours on those days. Because of that, I think it would be hard to get a part time arrangement where you did not have to work afternoons without also having an agreement on fixed hours.

The only thing I can suggest is requesting to be allowed to work fixed hours for a trial period - e.g. 3 or 6 months. They are likely to look very unreasonable if they won't even give it a go, and then at least you will have a bit more ammunition if it comes to a fight.
Good luck, I do wish employers were a bit more enlightened about this sort of thing.

Don't have any answers, but just wanted to say that if it went to tribunal, you can be represented by a barrister (or a trainee barrister) through the FRU (Free Representation Unit) but CAB have to instruct them. HTH. Oh, and I think solicitors are the WORST employers!

choc, has given good advice here which I would have said. As we all know there is no right to flexible working and many jobs just cannpot be done that way so it's not illegal to refuse in many cases.

By the way why should it be you and not your husband making the flexible working request? That seems extremely sexist to me. Does he see chidlren as a mother's thing becuase you're female. May be his employers would be more amenable to a request. Just a thought. Always annoys me women get lumbered with all this stuff when fathers are just as able to go to see doctors etc. Be firm at home. Say your firm has refused now he needs to get his finger out and organise it or hire someone to help cover the drs' appointments and that it is his child as much as yours and why should your career suffer just because you're female

Xenia, my husband works long hours away from home for almost half of the week currently. It is not a case of him not pulling his weight or not helping. He does more than his fair share when he is at home. His work entails travel and meetings after hours and conferences away from home so it just will not be practical.

I am the one with set work and minimal deviations from the 9-5 office routine.

..its is ever thus and so nothing changes and women clean the house and men get all that travel and time off children. It will never change until women insist men apply for flexible working, marry men who will and themselves go back full time. We are doomed unless women make it so.