FWA rejection - advice pls!

[ReverendBingo]

Hello mumsnetters, a dad infiltrating the ranks! I've seen some of you offer some good advice re: flexible working arrangements, and currently I'm fuming about the situation my wife is in, so thought I'd see what you ladies think. Apologies if it's a bit long.

My wife is employed as a project manager by a large investment bank, which has always been pretty good on flexible working. Before going on maternity leave, she informally told her manager (who we both considered to be a friend until now....) that she was going to come back on 3 days a week, and he had no objections, obviously subject to submitting an FWA request. Back in April, a friend who does a similar job had submitted a FWA for 3 days, which was initially fine with her direct manager, but at the last minute was rejected and told that she had to work 4 days minimum. That alarmed my wife, who immediately submitted her own FWA, with her manager still implying that he would support 3 days.

After 13 weeks, her manager finally organised a meeting to "discuss" the application. However, there was no discussion, he simply told her that it was being rejected, that 4 days might be acceptable, and giving a bunch of reasons that essentially boiled down to "things might go wrong when you're not in the office". My wife offered multiple suggestions (working 3.5 days, doing long hours on the 3 days she was in, job sharing, taking a different role), but they would not accept any of those and offered no compromises except the 4 days. From talking to two or three other ladies on maternity leave, it appears that their requests for 3 days were also being turned down. It's extremely apparent that a decision has been made at the top to not allow people to come back on anything less than 4 days a week, and the managers are simply concocting reasons in order to tow the party line.

My wife appealed this decision, and went through a process with HR (Hardly Reliable...). They seemed to have some sympathy, but ultimately just sided with the managers. They pretty much brushed over the point that they had taken 3 months to respond, by saying that the manager "perhaps needed some education in the FWA process", even though he had read exactly the same notes regarding the process as us. They also implied that one of the reasons was because my wife dared to go on holiday in the last of those 13 weeks!!!

Having little choice (the job pays very well, she would never be able to find a comparable job with part time hours), my wife extremely reluctantly decided to accept the offer of the 4 days. However, now her manager is saying that the 4 days was a suggestion rather than a compromise, and so she will have to submit another FWA request based on 4 days and "try" to get that approved! He is also asking her to confirm when she plans to go back full time - in my book that is completely irrelevant as to whether an FWA is approved or not.

TBH, I think most of my anger is that someone who my wife has worked for for 8 years (and me too for a couple), and who we considered to be a friend, could be so utterly unsympathetic, disrespectful and virtually smug in his handling of the request. But, more importantly, my questions are:

• If we took this to an employment tribunal, would it get anywhere? From reading notes, I see that one of the grounds for going to a tribunal is that the process was not followed - this is blatantly true in the case of taking 3 months to set up a meeting, but also the fact that it's obvious they are applying a blanket policy. My own concern about that is that whilst it is a blanket policy, the decision could possibly be justified in my wife's particular case. Would a tribunal be lengthy/expensive?
• Can they make her submit a second FWA to get 4 days? It's never been "formally" offered as a compromise, but it has been mentioned as a "solution" multiple times (in the meeting, in the rejection letter and in the appeal decision).
• The requests are not being approved/rejected by line managers - they are being sent "up the chain" for approval by senior managers, who do not have information about circumstances, job requirements etc. Would that be grounds for suggesting that the requests are not being reviewed appropriately?
• I always slightly cringe at dubious sexual discrimination cases, but having done some reading, it does appear to me that having an unspoken policy of not allowing part time workers would constitute indirect sexual discrimination - the majority of part timers being new mothers. Would the company be able to justify that (e.g. on grounds of business need)?

Thanks for any help

Mark

Hi Rev Bingo,

I'd post this on the Employment Issues topic, there are some very good people there, especially flowerybeanbag.

Good luck to you and your wife in finding a suitable solution, I also work in an investment bank and am waiting to see if my FWA has been accepted. It is tough enough sorting out childcare and a working pattern that is workable without ones employer messing one about.

Hi welcome to mumsnet. I'm not in HR but was in a similar situation to your wife so until someone more qualified comes along I will talk you through my take on it.

Your DWs employers didn't follow the correct process in terms of getting back within an appropriate time frame.

However in terms of rejecting 3 days I would suspect that if it was taken to a tribunal it would be quite easy for them to use a business reason to justify why it was declined i.e. project manager would have deadlines etc etc. I would think it would be less easy to decline a 4 day proposal on the basis that a) its an easy win for them because the reality is that your wives workload is unlikely to be much reduced therefore they get the job done for 80% of the salary b) it is harder to justify from a business perspective why someone absolutely has to be there 5 days a week.

I know that her manager verbally discussed the 3 days a week but I don't think that counts for anything disappointing though it may be.

I'm not sure why she has to submit another request, I think though it looks like they are deliberately trying to make things difficult but tbh its not that difficult to complete the form.

I think if I were her I'd fill the form in again and see were that took me before going down an official route. If your wife is a member of a union I would strongly suggest she gets a rep to accompany her to her meeting to discuss her request, or failing that bring along a friend which she is entitled to do.

The good news is if she does get 4 days accepted, its not as bad as you would think. I do 4 days after my 3 days were rejected and there are upsides such as I am not frantically busy all the time which I would be on 3 days, I feel part of the team which is more difficult the less days you do, and the extra income comes in handy

How about you put in a request to do 4 days a week or compressed hours ?

Hi Mark,

I am an employment lawyer, so hope this will help.

The grounds on which an FWA can be refused are as follows:

The burden of additional costs.

Detrimental effect on ability to meet customer demand.

Inability to re-organise work among existing staff.

Inability to recruit additional staff.

Detrimental impact on quality.

Detrimental impact on performance.

Insufficiency of work during the periods the employee proposes to work.

Planned structural changes

Procedurally the position is as follows:

The level of detail which an employer might need an employee to provide in an application (and which will assist them to make a decision) will depend on the changes to their existing working pattern an employee has requested.

It is to employees' advantage to provide as much detail as possible about the pattern they would like to work and why. They should bear in mind that it is generally helpful for their employer to have as much information as possible about their situation. Therefore, it is in an employee's interests to be as clear and explicit as possible.

If all the time limits and potential extensions are taken into account, the whole procedure may last 14 weeks. Employers are therefore likely to be justified if they ask employees to give a lengthy period of notice when suggesting when they would like any new working pattern to commence.

An employer should make their decision in respect of an employee's request on business grounds, rather than the employee?s personal circumstances. However, employers should remember their obligations under other legislation (specifically discrimination legislation) will also be relevant.

Following EL1's advice on putting everything down on paper, assuming your wife is prepared to consider 4 days, it is worth it to re-submit the application based on 4 days' working. I posted this on a another thread about what to put in a flex working application, and cut-and-paste it here:

"Confirm that you are making an application under the Flexible Working Regulations.

Have you made a request to work flexibly before? If 'yes', when (must not be within a year) and what was the outcome? [State that this is re-submitted at the request of the company and is part of your wife's original flex working application]

Confirm you are requesting flex working to care for a child, the age of the child (must be below 6) and your relationship to the child.

Any days within 28 days where it is not convenient for you to have a meeting.

Describe your current working arrangements, new proposed arrangements and start date.

Describe the key elements of your role and how you can continue to maintain a high level of service with the new arrangement.

How will you maintain good commmunications when you are out of the office.

How will you meet the criteria for performing well and what evidence can you show.

How will you keep up-to-date with technical developments and training.

What IT/telcomms/remote working technology would you need?

What would you need to change in your working practices to implement the new arrangements.

What flexibility do you have if a client or other need were to conflict with your new arrangements?

What adverse effects would your new arrangement have on external clients, internal clients, your colleagues and the people for whom you work.

What benefits will this arrangement bring for the company and its clients (this always makes me laugh)

How will your boss continue to monitor your work and performance?

What are early warning signs that the flexible arrangements are not working."

Just follow the flex working procedure as best you can. Then if that does not get anywhere, exhaust the company's internal grievance procedure. Then if that still does not get you anywhere, you are ready to bring the discrimination claim, if you want to take it further. But you have to play the procedure game before you can do that.