Can my employer withdraw flexible working once agreed?

[silverstar8]

Hello,

I took a career break for 1 year and due to return to work in October. I was working flexible hours for about 2 years, initially I was doing 37.5 hours over 4 days.

Last July I intended to leave my company, however, they decided to give me a counter offer which included changing my hours to 6am-2pm and over 5 days. I decided to stay and worked these hours up until my break last October. I don't remember if my employer gave me anything in writing, but this was a verbal arrangement with a senior manager.

I've now been in touch with my employer to discuss a return date and how flexible working will resume. My new manager responded by saying they don't want employees starting before 8am just incase the systems don't work and the IT support cannot help before 8am. There are other employees who start before 8am and I was doing this for about 2 years. They seem to say this kind of thing when it suits them.

Anyway, I responded by suggesting I work 8am til 4pm if they're that concerned about the systems (which in the 4 years I've worked there rarely happened).

My manager has now responded by saying this request has been denied (for 8 til 4pm) and I will have to work the standard rolling rota. So they are trying to withdraw my flexible working in its entirety.

To be honest I'd forgotten that when my initial flexible working arrangement was accepted 2 years ago this changed my employment contract.

Am I right in thinking that my employer cannot just withdraw my flexible working arrangement as it does now form part of my employment contract? Our career break policy does not stipulate that it would be withdrawn or I'd have to re-apply, nor was it ever discussed verbally or in writing.

Also, because my last arrangement was 6 til 2pm over 5 days I'm assuming they cannot simply withdraw it even though it was a verbal arrangement? My employer offered me those hours and I was doing them for 3 months (so systems crashing didn't seem to be a problem then when it suited them).

Appreciate any employment knowledge anyone has.

Many thanks

Not a HR expert, but from experience with a Career Break, your employer only has to follow what's in the employee handbook, there is no legal obligation to keep your old job and conditions open, in fact they could turn round and say there's no job at all for you.
Hopefully others will be able to confirm your position.

In my company, massive corporate, flexible working can be formally withdrawn with sufficient notice if it doesn't suit the needs of the business.

It isn't a right for life to my knowledge.

Are you in a union? I'd be speaking to them.

I'm not in a union at the moment.

From what I've been reading on sites like gov.uk, acas and citizens advice (I'm in the UK) they all say that once the flexible working arrangement has been agreed it forms part of your employment contract. The employer and employee must agree to any changes.

Regarding if there's still a job, they have informed me of the team I'll be working in upon my return.

I have responded to my manager's email explaining that I believe my arrangement can't just simply be withdrawn etc. so I'm waiting for a response.

A similar thing happened to me. In fact I posted on here about it. I had to resubmit a formal flexible working request and it was eventually accepted but that was with me compromising on my hours (in a similar way to what you have already suggested to your company). I also had to get my union involved as they dragged their heels repeatedly over the whole thing. Despite my request officially being 'approved', the whole ethos of my department changed, flexible hours are really frowned upon now with the new management. I'm making plans to leave...

Hopefully someone better will be on to advise you. I also had been doing my hours for years with verbal agreement only.

I'm no better than anyone else on here I would suggest you need to put in a formal flexible working request, to signal it needs to be assessed according to the company policy (with tends to follow ACAS good practice).

There are criteria they will use to either accept or decline the request. If they have signalled that the business needs have changed since your last request, then they can just use a relevant criteria to reject your claim.

Try to highlight how you would minimise the impact and what cover would be in place when you aren't working. Ultimately the company cares about its needs first, and if your flexible arrangement in some way is counter to those needs, they have the right to change the arrangement with justification.

I'm in the NHS and people who have flexible working, in the area I work in, have their flexible working arrangement reviewed every year. Some people can't work nights/late shifts. If this didn't happen then a lot of the mums, who changed their hours when their kids were little, would still be working school hours (when kids were now old enough to look after themselves) and younger mums would be denied flexibility. Saying that, we still have a woman in her 50's who has a 23 year daughter who also works with us, and she still has the flexibility of working school hours (and part time). We have a younger mum, who has just returned from maternity, who is being denied flexibility and a drop in hours due to the needs of the service.

My husband works with a woman who arranged her flexible working over 14 years and her request was not to work weekends and work 3 fixed days during the week. Her husband, when the child was a baby, was working weekends but he changed jobs and hasn't worked weekends for years. My husband has to work more weekends because of this (I also work weekends) so we have very little time as a family. My husband was denied flexibility at the same company because he is a man!

I am a firm believer in flexible working but think it should be reviewed regularly. If circumstances are the same, then the flexible working continues. If not, then it should be withdrawn.

Yes, they can withdraw it when they want.

If you do set days/hours for so long does it become custom and practice? Or does it not matter and companies can withdraw it at any time?

A lot of misinformation here.

OP you are right. Hours agreed as a result of a formal flexible working request under the relevant legislation are just as permanent and contractual as any other hours. It is no easier for an employer to change the hours of someone working 3 days a week school hours than it is to change the hours of someone working 5 days a week 9 - 5. And the reason a flexible working request was made is entirely irrelevant to both the decision about whether to agree it in the first place, or to any review that takes place.

However, it sounds like your flexible working arrangement (assuming it was a formal one following the legislation requirements) might not be relevant anyway, as you by mutual agreement changed your hours last July for 3 months.

What do you think your contractual hours are OP? Do you think the hours you worked for 3 months last summer by verbal agreement are your contractual hours, or are you arguing that that was a temporary variation and your permanent hours are still whatever they were before?

Custom and practice tends to apply to benefits more than flexible working, on the basis that a bonus paid year after year for example becomes an implied contractual benefit, even if not stated specifically.

The argument around flexible working is somewhat different - balance has to be struck between fluctuating business need, but having a healthy work life balance/ability to bring up families with both parents working etc.

Government wouldn't be popular if it dictated too strongly " you must accept every flexible working request even if it isn't economically viable". There needs to be a mechanism in place for business to decline a FW request, maybe due to growth (so, bums on seats needed to do the work) or the workforce was forced to shrink (so, fewer people having to cover more work) etc.

In reality however, if you are a valued resource, and you have a strong enough reason and can prove the company would not suffer financially, it is often the case they buckle and say OK. Also the size of company can be a big factor. SMEs have less flexibility and resource than huge global co's.

@flowery

HR have emailed to say I am correct and that when my flexible working arrangement was agreed it formed part of my contract. This was applied for using our company app form. For 2 years I was doing compressed hours over 4 days.

HR says that the career break policy states "you reserve the right to return to the same or a suitable alternative role on no lesser terms in place prior to your career break, subject to organisation change". So I'm trying to clarify if I still have my previous working arrangement in place.

I resigned last July and intended to leave. A counter-offer was proposed (as I'd said to my line manager the hours I was seeking elsewhere) and that's when they offered me 6-2pm (which was a very unusual shift to offer me to stay, but they did anyway). This was arranged verbally and I worked these hours until taking my career break. There was no verbal discussion about any review or a trial period or anything like that.

I'm trying to clarify with HR how a verbal arrangement for flexible hours affects my contract, does this override my initial working arrangement? After all, they offered it me, I never asked for it as I intended to leave.

As they said that I am correct that my previous arrangement did form part of my contract, I'm trying to clarify if I actually needed to re-apply. I only re-applied as my line manager said I had to and he said flexible hours can only be from 8am. That's why I proposed working 8 til 4pm.

You don't need to reapply for flexible working no. The only question is whether your contractual hours are the ones you were working before last July, or the 6-2 you worked from July for 3 months before going on your career break.

However the career break policy does indicate that you can return on no less favourable terms subject to organisational change, which is not a cast iron guarantee of honouring previous hours. The question isn't whether your flexible working is contractual, it's also whether they have to honour it given you've taken a career break, and the answer is no they don't have to, as they have made that clear in advance through the policy.

It's not clear from your post what hours you actually want. If you want the 6-2 you need to assert that these were your terms in place before your career break (as the career break policy states, use their wording. It says terms in place before career break, not permanent terms or similar, so by that token even if the arrangement of 6-2 was temporary, within the career break policy wording it does 'count'), and that according to the policy, these are what you are entitled to return to.

Then if they say no, ask what organisational change has made these hours no longer possible.

If what you want is the hours you were doing before, ie the ones agreed as part of your original flexible working request, then you need to argue that those were your permanent terms, and that the 6-2 was an informal temporary variation, therefore post-career break they need to honour those.

but as I said, it seems the policy is clear that pre-career break terms will be honoured unless organisational change prevents it.

I argued that the 6-2pm shift was offered to me verbally and there was no mention of it being a temporary arrangement or that it would be withdrawn. From my perspective this is what they offered and I accepted it as a permanent change to my hours.

HR are arguing that because it wasn't formally processed and only verbal it doesn't represent a permanent change to my hours. They argue if I wanted it to be permanent I should have applied for it formally. I was never advised by the senior manager who offered this to me that I needed to do that. I obviously regret not getting anything in writing and I have been naive to trust that this wouldn't have repercussions when returning to work.

They have said they are declining my request (8 til 4pm) and by default I would return to my role on the previous agreed arrangement (the compressed hours over 4 days), however they are saying these hours don't fit with the business needs anymore. The earliest shift they operate is from 8.30am (so why tell me I can apply for something before this time when in actual fact I cannot).

They say that although by default I would return on previously agreed hours but as this no longer suits the business needs they are keen to come to a mutually beneficial agreement. I think my line manager confused matters as he suggested that the 8 til 4pm request is denied, you're going to be on the shift rota...end of! Whereas HR as saying this is a suggestion.

I actually don't want to return on a 6 til 2pm shift and was keen to start abit later. However, returning to what I was doing before I took my break is better than reverting to the shift rota which is not ideal. I prefer to have set shifts due to my outside commitments and now I'm starting a degree. I think I will go back to HR and ascertain whether they can at least agree on a set shift that mutually benefits us. I realise it's not up to my employer to manage my life. From talking to another colleage it seems since I've been away the whole atmosphere has shifted from helping maintain work/life (which they used to preach about) and now it's become more corporate, which is a shame.

Regarding the reasoning they've given, they are saying due to the company not performing well they've introduced initiatives to ensure customer service is not affected. However, the company wasn't performing well before I left and the initiative they cite was well in place before I left.

I will also contact Acas for advice. I did call them a few days ago and they did say that the employer is not obliged to give me the same hours when I return but they did say I should find out if they was anything written about returning to work on no lesser terms. So, now I've found that out I'll see if I have any grounds to argue this further with my employer.

Obviously, the alternative is to return to work on their terms and look for something else that will suit me better. Due to something else that happened I agreed to return for a minimum of 3 months due to a huge miscommunication with a bonus payment which is a whole other story ;)

The policy says no less favourable terms than those in place before you left, so if you wanted to argue for the 6-2 you could say the policy doesn't say "unless those terms were agreed verbally or on a temporary basis".

But as you don't want those anyway, and as the policy has a 'catch-all' allowing them to change terms for organisational reasons, there seems little value arguing that point.

It would be unusual for a career break to come with an absolute guarantee of exact terms being honoured, so as I've said earlier, I think the 'flexible working' of your previous hours is irrelevant really.

You need to carry on trying to negotiate something you can live with, in the knowledge that this was always a risk when you opted to take a career break.

I had a more productive chat with Acas and I was advised that the verbal arrangement for 6 til 2pm was legally binding so were therefore my contractual hours before I left for my break. HR were arguing that because it was verbal I should have made a formal request to make these hours more permanent and it would have been considered through formal channels.

When I thought about that it didn't make sense to make a request because my employer made this proposal to me not the other way round.

Anyway I would like my employer to agree that those were the contractual hours up until leaving.

It's clear that regardless of what the contractual hours were they say it no longer fits the business. They want to come to a mutually beneficial agreement with me so I'll work with them to see what we can do.

Also, if other employees are working before 8.30am do I have grounds to push for flexible working before this time? I assume I'm within my rights to ask this question to my employer?

No they can't...join a union