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!

Xenia - you mention "travel" and "time off children" in the same phrase as if business travel were in some way a benefit in kind...

I don't know how much you have travelled for business, but (from someone who has done extensive international business travel) I think it's a complete nightmare for all but the very young. My partner just can't bear business travel anymore (and he doesn't go to bad places - he opened Milan and Bergamo recently).

Yes and it gets boring but if you've 3 under 5s at home who wake every night and home is like a kind of blitz area (anyone with a few small children knows the scenario whether they work or not) then 3 nights in a hotel on a business trip is manna from heaven and a through night's sleep. Women should get those "breaks" night for night as many as their men get them in a fair world.

Hmm, I still think that you are idealising it a bit. My experience of business travel is getting up at 5am, spending hours in taxis, airports and planes, getting to bed after some lengthy, heavy and boring dinner at around midnight just to get up at 6am for more of same...

And home is never a "blitz area" and I've never once had a sleepless night with my daughter (and partner never has with boys) unless she's ill - which has happened once.

But anna you live in a gilded cage of wealth. Most men on business trips in fairly normal middle management jobs have wives at home without even a cleaner, usually quite a few children and usually woken in the night if the children are under 5. It can be hell on earth in those homes at bed time and many men seek to avoid bed time if they're bad for that reason and 3 nights away on business for mother or father is a rare treat because you can go to bed and sleep and not be woken.

Xenia, may I ask you why why why do you feel the need to push every thread, whatever the OP question, towards the same debate?? It is understandable you feel strongly about such issues but don't you think it is a bit rude towards the OP who started a thread asking a practical advice? It has happen 4 times already in the past two days.

Good point there. So much for Xenia working full time - she's on here most of the day! How uncommitted can you get?

Next thing you know, she will be taking time off for her children!

No I don't live in a cage of gilded wealth... whatever makes you think that?

Getting your children to sleep at night and managing your household such that it isn't chaos is within the realms of nearly everyone. You just have to make choices, compromises and even sacrifices that avoid people being too busy and/or fraught to have a well-organised household and home life.

You know what Xenia? I love my husband and my life. I am happy with the commitment my husband shows to me and the fact that he works so hard. He NEVER wanted to have children but he compromised to make me happy. Then he happily supported us whilst I was off work for over a year and is happy for me to stay off longer if I want. It is me that wants to return to work on a mornings only basis and on the best possible terms and that is why I posted for advice on here.

I did not expect a lecture on womans's rights nor ignorant comments about my husband's lack of commitment. I am sure you mean well, but really....your militant approach is unnecessary.

It won't be necessary when as many men go back part time as women. Until then it is very very necessary.

You know what makes me mad? It is women who are militant about "women's rights" and think they have the right to prescribe to other women how "wrong" their lives are.

I am a successful solicitor, wife and mother and I chose to have a child. Perhaps in a differant world, where houses were affordable and life was not so expensive I would have chosen to have stayed at home, at least until my son was three or four years of age. I have chosen to return to work to enhance our lives and to pull my own weight. My husband has NEVER insisted I return to work and is proud that he supports his family.

I really wish that you would get off the case of people who do not want nor need your feminist clap-trap. It is so 70's. I love the fact that in today's world we, as women, have the right to choose our life not have it dictated to us by the old so-called "women's libbers".

Jodan67, good luck with it all, I have been following your story, no help or advice re employment rights but am pleased to see you fighting for what you deserve and was at the last few comments as they are not necessary to this thread.
Don't rise to it, and wishing you all the best to you and your family and I hope your unsupportive company gets its just desserts.

I don't agree but we'll just have to agree to differ. You husband hasn't insisted you went back to work and you haven't insisted he has even if you'd prefer him to mind the child rather than you but in a lot of families women work part time and aren't really given much effective choice. The man just assumes he will carry on even if he'd rather like flexible working.

I have read somewhere that, if flexible working is refused by an employer, and this is then taken to a tribunal, something like 95% of tribunals uphold the right. So whilst it is not a right, in theory it should be easily available.

I think it was on the EOC website.

HTH

Thanks for the support ladies!

I have until mid-day to decide whether to go back "part-time" or delay my return and then go back full-time. I did query the part-time proposal and received an e-mail detailing what the firm's expectations would be regarding the take on of new matters. Hmmmm I have spent the early hours of this morning going through the firms monthly stats to discover that to take -on the figures the firm are suggesting would be absolutely impossible working a half day. In fact it would be hard working a full day. I have a very good comparator as an experienced fee-earner joined the firm last year and had to build up a case-load from scratch, like I will do. In his first two months he took on the number of files the firm is wanting but had to work full hours to do so as is eveidenced by his recorded hours.

Needless to say, I cannot go for "part-time" as I have the proof it cannot be that. So I shall be penning another letter/e-mail pointing out....again....that they are not taking on board the fact tht I am seeking part-time work. They just don't get it or they are trying to trick me.

Will keep you posted.

Jordan,

Good luck with whatever you decide and keep fighting them.

I went through something similar when I returned a year ago from maternity leave and thought I had won.....I got a written appology and now back at work I am treated as the lowest of the low despite haveing more experience than most of my colleagues. I was evn told to my face how things moved on while on maternity leave and the person who came in to cover for me could keep doing my job when I returned and I would have to pick up whats left.

Anyhow I guess my point is stick at it and make sure it works out the way you want and no one else

Well, I sent an e-mail to the senior partner advising that their offer of "part-time" with unattainable targets was not acceptable and that I would call him in the morning to discuss urgently. I telephoned the office at about 10am to be told he was away on leave that day. I was a little stressed out as I was supposed to reply by midday to their proposal so I sent another e-mail to the other partner copying in the response I had sent to the senior partner and suggested an urgent meeting next week. Have heard nothing.

What do you do if the offer of part-time is not part-time? Do you go back to work and negotiate from there or do you sort out the terms beforehand? I am inclining towards the view that perhaps I should lodge a grievance now but don't want things to get acrimonious if I am to go back there. On the other hand if I need to go to tribunal I shall need to lodge a grievance. They really are messing me around and the longer this goes on the more money I am missing out on as I should , by rights, have started back to work on the 27th March.

I shall phone on MOnday and see where things go. If no reasonable resolution is forthcoming then I shall lodge a grievance. Another thing is the fact that should I go "part-time" they require an irrevocable undertaking that I will return fulltime in January 2008. My understanding is that you have the right to request part-time work each year up until your child is 6 years. Although I don't really want part-time on an indefinite basis you just don't know what will happen a little further down the line so do not really want to give an irrevocable undertaking to that effect. Can they insist on that?

What do you think?

Once agreed, a change to your hours under flexible working is a PERMANENT change. It is not reviewed after that nor does it change once your child reaches the age of 6.

You can request a change once every year. So if you decide after 6 months that the work pattern doesn't suit you and you want to change, you have to wait until a year from the date of your last application (date you put it in, not when it was agreed or became effective). A reasonable employer may though consider an earlier request.

Alternatively, an employer may wish to change your hours at any time if it no longer suits the business. They cannot do it without your agreement. If you dont' agree, they can terminate your existing contract and issue a new one with new hours. You could potentially resign and claim breach of contract and constructive dismissal. Another option would be for them to make the part time role redundant and recruit a full timer. They then have to follow redundancy procedures.

What I am trying to say is that nothing is ever really permanent, there are other options an employer can look at to get rid of someone or change their hours.

At the moment for you, they can either turn you down completely and justify the business grounds under one or more of the 8 separate headings under which they can reject it (then give you the right to appeal etc)

or

they can allow something on a trial period - useful if they are not sure and want to see if it will work in practice. They can't really put a condition on it that you HAVE to go full time at the end of a set time. If they think it won't work, then they have to deal with it properly.

Clearly they are not managing the matter correctly anyway. Its a bit of a joke about the part time that isn't really.

Can you remind me please, when you told them about that you were pregnant etc, did they formally notify you in writing of the date you were expected to return (that would be a year from the date leave started). This is important as I am concerned that if you have not returned to work you have breached your contract.

Just a small point for anyone thinking of applying for flexible working.

The process could take up to a maximum of 84 days if all of the timescales went to the limit (28 days to hold a meeting, 14 days for decision, 14 days for appeal, 14 days to hold appeal meeting, 14 days to give appeal decision).

So that is a possible 12 weeks that you won't have a final answer so its a good idea to allow for this happening and apply at least 3 months before you need the change to take place otherwise you could end up in a difficult situation.

Yes, it seems they are not being very well advised. They should change lawyers.

Do you think the job can be done part time and they're basically just pretending it can't or is it genuinely difficult for them (as it is for many jobs) to make it a part time job?

I suppose the other issue is would you rather be full time than have no job and how easy would it be to find a part time job if they manage lawfully to refuse the flexible working request and my other question of whether your husband might more easily be able to go part time if his employers are better about those sorts of things than yours seem to be?

I am currently on holiday leave as I accrued that during my maternity leave. I was due back on the 27 March but my employers agreed to me taking longer whilst this is sorted out. The letter setting out my options stated that should I decide to return on a pert-time basis then I should return on Monday the 2nd March. The other alternative was for me to return anytime up to January 2008 on one months notice on a full-time basis.

Perhaps I should go in to work tomorrow? But I cannot agree to the "part-time" as it stands as it is not part-time and then I would be setting myself up for a huge failure. If these are the terms they are seeking to impose then surely I should resign and lodge a formal grievance. Urghh this is all so messy.

I am sure no court in the land would find that I had breached my contract in these circumstances. The breach has been on the side of my employers. Surely I would be entitles not to return until the issue of part-time has been sorted out? At this stage there is no computer, desk, secretary etc and that is why they inserted the clause that I could return on a full-time basis on one months notice. They have also stated in a later e-mail that we can discuss a return date for part-time work.

Chocolatekimmy, I have just re-read my e-mails to work and in the last one sent on Friday advised that if their latest "part-time" proposal was final I could not accept that option and would choose election 2 i.e. to return full-time on one months notice anytime up to 2008. I did add that I would hope that they would take careful note of my comments and review the part-time proposal. I have therefore gone back to them with an answer as requested by them (in their letter to me setting out their propsals) by midday on the 30 March. I did try to call them on Friday to discuss the "part-time" proposal but the senior partner who was the author of the proposal was away for the day. So I have covered myself by giving an answer but have indicated that I am extremely unhappy and wish to discuss the propsal further. I intend to call them again tomorrow and advise that should they not come back with a proper "part-time" propsal then I shall lodge a grievance and take it to tribunal.

I think I should be okay and do not think I could be held in breach of my contract as work, in effect, has dictated my return dates and I have responded within the time frames given at all times. If they do not start to act in good faith and put a real part-time proposal on the table then I shall proceed further. I think I will call the employment lawyer I spoke to just to be safe as well.

sounds like you are ok then, especially if they said in an e-mail that a part time return date would be discussed

It might also depend if you see this part time wroking as a temporary thing for a year or two which you could just about afford until the children are in nursery school and then you do see 40 years with them working full time to age 65 or whether you doubt you'd be there very long anyway and probably never go back to full time work with anyone so doesn't really matter if you annoy them and have a reference problem in future and articles about XYZ brought a case, not that properly that should be an issue but in practice I suppose it would.

I am so chuffed.

Had a meeting at work today and essentially agreement has been reached. I can return to work on a part-time basis when I want although it will in all likelihood be July. The number of cases I am to take on has been agreed and I am more than happy with the number as it constitutes a true part-time number. The only thing is I have undertaken to return to work full-time from January 2008 when my son will be almost two. But, I did indicate that I would be happy with that.

I feel really happy as it seems just a few weeks ago that I was being turned down point-blank when asking for part-time work.

So to all those women out there that get turned down initially, just perservere...you never know how things might turn out in the end!

I would like to thank everyone on here for all their support. You have offered really good advice and I am so thankful!

That's good. Perhaps some employers just get worried things can't work but if they look into what it might involve they see a compromise is actually workable and possible.