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trouble with flexible working

9 replies

chocbiscuits · 29/07/2007 22:43

I wrote a flexible working application for when I went back to work from mat leave one year and seven months ago. This was accepted as 2 days working from home and one day a week (wednesday) take as holiday for 13 weeks.
So all was accepted (although what to happen on wednesdays after the 13 weeks was admittedly a bit vague). After the 13 weeks were up I asked to carry on working weds from home and this was verbally agreed to. Worked three days a week from home for a year and 7 months.
Suddenly one of bosses decided I should come in on wednesdays. I find this particularly hard as my commute is long (1hr18min one way) and in order to get back for 5.30, I start work at 8. Boss started really hounding me about the wednesday thing and I felt really harrassed, went off my food and sleep and everything.
Last week was basically forced to go in on wednesday but ds doesn't sleep thru at all and by thursday was basically complete sleep zombie.
He said from home my work amount is good and the rate of work is good but I need to come in to have cups of tea with ppl??!!!
Spoke to his boss who unfortunately reiterated his wishes and said I've become isolated and this is why I need to come in. Haven't felt particularly isolated.
Then suddenly boss came up with a contract I'd signed when I came back from leave with me having signed I'd come in weds after the holiday - I was gutted. I don't remember that at all.
Can they now force me to come in weds after a year and 7 months? Big boss said if we go thru HR will fall out with ppl and ruin our team relationship.

OP posts:
CGOmum · 29/07/2007 23:38

Call ACAS as a contract of employment doesn't have to be in writing it can be verbal or just implied (it's the law). The fact that they have allowed you to carry on with working from home for over a year means they have implied this as your contract and the paperwork they have shown is out of date and you don't need to feel pushed. At the end of the day they have accepted you working from home and you can take them to tribunal if you had and i did with an old employer who did this to me. You have the power as when the 13 weeks run out they allowed you to carry on. The only way they can push is to prove that you not being in work means your job can't be carried out and you've proved it can. Call ACAS tomorrow and find an employment tribunal adviser in your area to help communicate with your employers. Take strength in the fact that you are holding all the cards at the moment and show them you will not be backed into a corner fight for your rights

CGOmum · 29/07/2007 23:54

sorry meant to add that if you go through HR it will ruin team relationship - your boss nows that you have all the cards and they are trying to get you to agree - once you do agree then you have accepted the old contract and they have the cards get legal advise tomorrow so you know your rights and how to fight before Wednesday.

flowerybeanbag · 30/07/2007 09:26

chocbiscuits it depends on a lot of things. What does your contract say about varying working hours/working arrangements? Sometimes there is something about the employer reserving the right to vary these things, with good business reason.

They are saying you have become isolated and need to 'have cups of tea with people' (!). I think the first thing you need to do is ask for more detail about how your work/work of the team is suffering because of you working from home so much. They haven't given you enough information and you are clear that you don't feel isolated so I think at the moment they haven't given you enough of a reason, so ask for that first.

When you put in an application for flexible working, it is considered a permanent change. When you changed, you say that Wednesdays were left 'vague'. Do you have a letter that you were sent confirming that your application was successful and outlining your new working hours. That should be quite clear on what was to happen about Wednesdays. Even if it wasn't, they have happily allowed you to continue working from home on Wednesdays for a significant period of time, so you can consider that as a permanent change to your contract.

Employers can vary terms and conditions of an employee's contract if they consult the employee, explaining and discussing the reasons for the change. Changes should be agreed between both parties otherwise it is a breach of contract.However, you will appreciate that there are occasions where an employer has absolutely no choice but to vary terms and conditions for whatever reason so there has to be a mechanism whereby they can do this legally if they have to without the agreement of the employee.

This is explained below by Acas -

'If, after negotiation, agreement on a variation of contract has proved to be impossible, an employer can ? having followed the statutory dispute resolution procedures, where they apply, and observed any relevant procedural agreements - terminate the original contract, with proper notice, and offer a new contract to the employee, including the revised terms. There will be no breach of contract as a result of taking such action. If the employee accepts the new contract, continuity is preserved'.

It would be considered a dismissal if they did this, so you would be able to claim unfair dismissal if the way they did it or the reasons given for dismissal were not fair. Bottom line is it is unlikely to end up going that far. You need to check the original contract you signed when joining to see whether your employer has put in the right to vary terms and conditions/working location when necessary, and ask for further clarification about the business reasons why your existing working pattern needs to change.

This is a change to your terms and conditions even though it was not written down, so they do need to follow a correct process to do it, consult and discuss reasons with you etc, so your first step should be to demand that.

If you carrying on working under the new terms and conditions without objection, you will be deemed to have accepted them. Alternatives are to carrying on working but give written notice that you are doing it under protest and consider it a breach of contract and will be seeking appropriate damages.

I would strongly advise speaking to ACAS or a solicitor before doing something like that - if you were to bring a unfair or constructive dismissal claim the tribunal would have to be convinced that the change to your terms and conditions was substantially different and could be considered a new contract rather than a variation to the old one - I'm not convinced a tribunal would see a request to work from the office on Wednesdays rather than at home as substantial enough.

If it wouldn't be a substantial change in the eyes of a tribunal, you could instead claim breach of contract in a civil court.

All this is very dramatic though, and I think you need to check your original terms and conditions re contract variation first and foremost, and insist on proper consultation discussion and information from your employer. Speak to Acas as well to make sure you are fully informed, and if you don't manage to do all this before Wednesday, send an email saying that you will come in as requested but you are giving them notice that you are doing this under protest and do not accept these new terms while you take advice about your rights in this area.

BetsyBoop · 30/07/2007 20:33

Just to add, have you thought about offering a compromise? Say going in once a fortnight, or once a month?

You might not feel isolated, but perhaps others in the team feel isolated from you?

I inherited a situation at work where a member of the team had been working at home FT for over 2 years. The one person who remembered her kept in touch, but the 5 others in the team who were new in that period had hardly met her (I think she'd been in once in a year ) and had no contact with her other than the occasional work email. After much persuasion (she didn't feel isolated & had no problem with the situation) she agreed to come in one day a fortnight - she actually came especially to talk to me two months later to thank me for asking her to come in as she was much happier about work & felt a full part of the team again. Based on my experience in that situation, I don't think it's "healthy" to work from home all the time, even one day a month in the office can make a huge difference to everyone, not just you.

chocbiscuits · 30/07/2007 21:24

This is all VERY interesting thanks for comments.

I have been going in two days a week for a year and seven months. Last week I went in three days but made it fairly clear I was not happy with it. This week I will definitely make sure I send them a note that I am not happy with it so I will have more options. I will point out to them the verbal implied contract should stand. Phew. I hope we can sort it out without big stress and falling out.

regards,
Choc biscs.

OP posts:
CGOmum · 30/07/2007 22:49

Hope it all works out but remember to contact ACAS and if all else fails then you can go to an Employment Tribunal but I'd try and avoid this as it's very stressful I've been there 3 years ago.

lauramichaels · 01/08/2007 20:02

Hi Chocbis,

I had a nightmare with my flexible, mainly because I didn't get everything in writing.

I sound this article, it really explains everything nicely www.babyfy.com/index.php/features/3056/Denise-Tyler/Flexible-Working-and-Time-off-for-Depende nts--what-are-your-rights-/

certainly help me sorting out things in my current job.

Thanks,

Laura

fee2 · 07/09/2007 23:02

i too am in a similar situation and would appreciate some advice, i returned to work after maternity leave and started off working a 16 hour week, two weeks before i was due to return my boss who had previously told me that i would be accommodated suddenly phoned me and asked me to put this request in writing and to copy HR which i did. I recieved a letter back saying this had been denied due to business reasons but that he was willing to meet with me to discuss some shifts that needed covering!!! I went to the meeting and was offered one shift a fortnight that suited my child care and the rest were evening shifts and weekends. My trade union challenged this as everyone in the room was aware including my manager that a full time colleague was on long term sick and another colleague was due to take her maternity leave, therfore leaving enough child friendly hours for me so reluctantly they had to agree but only on a temporary basis.That was in November 2006. Since then i have undergone a merger with my company and my job title changed hense more workload and as my son was so settled in nursery i decided to increase my hours to thirty hours a week provided they could accommodate my childcare. This was verbally agreed by two managers and i started my thirty hours in April this year. One of my collegues returned from maternity leave at the end of june and i was asked by one of my managers to change a thursday for a sunday every fortnight so that they could accommodate her hours request which i agreed to, since then other colleagues( all males ) have made complaints about their own hours often being quite verbal and resentful about our child friendly hours so when a third collegue announced her return from maternity a performance manager got involved, he has now drawn up a new rota and has stated this will be implemented from the 17th of this month( i returned from being off sick for two weeks this Monday) to discover he has put me on the rota for every saturday a day when he knows i have no childcare i am now very worried as i am a lone parent and i am our only source of income i would invite all your advice on this please

chocbiscuits · 11/09/2007 00:07

Hi fee2,
I hope you are getting on OK, sorry I have no helpful comments to make, just going through bit similar myself. I really hope you can get it sorted out.

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