FWA rejection - advice pls!

[ReverendBingo]

[Moved here from the Going Back to Work topic, apologies for duplicating...]

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

Sorry this is going to be a bit disjointed, I'm jotting thoughts down, but hopefully will make sense.

Employment tribunal can force an employer to hear the request again, this time following the correct procedure, but they do not have any power to say whether a request is reasonable or not. So from that point of view it's not going to help get the decision changed, unless they are basing the decision on incorrect facts and therefore need to be forced to reconsider it.

It doesn't sound as though that's your problem.

I very much doubt you could prove there had been a blanket policy decision, so I'd forget that as an option. In any case, if it's all very similar jobs, for example, consistency in terms of what is and isn't possible wouldn't be surprising.

Complaining about who is making the decisions isn't a way to go either. You have no proof that the more senior managers you say are making the decisions aren't being fully informed by the relevant more junior managers, which would be what they say, and would be fair enough as well.

You mention an unspoken policy of not allowing part timers, but that's not the case is it? They are allowing part timers, just not 3 days?

The bottom line is the employer must consider a request, they must follow the correct policy, and they must give one or more of eight set reasons for refusing, and explain how that reason applies in each individual case.

Obviously I have no idea whether your wife's job could be done in 3 days or not, so can't advise whether their decision was reasonable. I would always advise someone to explain clearly how this would work in their application, and the advantages for the employer in agreeing. With a request to work 3 days instead of 5, that's a fair chunk of the working week gone. Was your wife making a realistic and reasonable proposal as to what would happen to the other 2 days worth of work? Was she proposing a job share or something?

In terms of returning to work, your wife's boss shouldn't be pressurising her for a decision. An employer must assume a woman will take the full year maternity leave unless and until they receive written notification that the woman intends to return earlier.

I don't think they can make her submit another request for a solution proposed by them, no. Has she been in touch with HR regarding this? Particularly as this solution has been mentioned in writing.

Next step is to think very carefully about whether the reasons given for the refusal of 3 days are reasonable, without allowing any anger or frustration to cloud thoughts on this. One or more of the following reasons must be given, with an explanation of how that reason applies.

Burden of additional costs
Detrimental effect on ability to meet customer demand
Inability to reorganise work among existing staff
Inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Insufficiency of work during periods the employee proposes to work
Planned structural changes

As you can see, the reasons allowed are fairly general and give an employer a fair amount of leeway to refuse a request if they want to.

If your wife honestly feels that the grounds given for the refusal doesn't meet the requirements, she could consider putting in a grievance.

Another next step is to sort this issue out about another request for 4 days. It's already been mentioned as a solution, and has been accepted by your wife. I think her boss is just being obstructive, I doubt that advice has come from HR, so she should speak to HR about that and get that resolved.

It's very frustrating, and I can understand the feeling of more personal betrayal as well given the circumstances, but it's important to look at the bare facts in the cold light of day, and consider them along with considering what the best possible outcome is for your wife, and how to achieve it. If she wants to stay in her job she will need to continue working with this person, and resolving this as soon as possible will prevent that becoming even more difficult.

I hope that helps a bit.

Thanks for taking the time flowery - this forum must be a full time job for you in itself!

I think you've pretty much confirmed what I thought - no matter how much you feel you're getting screwed, there's little you can prove when it comes down to it I can understand some of their justifications, but a lot of the frustration comes from knowing that 9 months ago this would not have been a problem, but things have obviously changed in the management style and there's not a lot we can do.

As it happens, my wife submitted another FWA for 4 days, which has been approved, but they want to add a caveat that it's reviewed every 3 months. In my book, that's wrong - the FWA results in a change of employment contract, and just as the employee has no right to return full time, surely the employer does not have the right to "review the situation" and force the employee to return full time?

Thanks again

Mark

That caveat is wrong. It's fine and indeed common to have an agreed 'trial period', often 3 months, but a flexible working request that is agreed is a permanent change of contract.

I just wanted to comment because I've recently seen this from a manager's point of view in an investment bank. The reality is the market sucks, people are getting laid off and banks (even the top ones) aren't doing that well. Headcount is being cut, so managers are less willing to agree to flexible working. I recently had a report ask for FWA and we agreed (it was 4 days) but if she had asked for 3 days I would have said no because there would have been no one else to cover the work. I can't hire someone else because of headcount restraints. The story was completely different two years ago when markets were good.

So perhaps this has something to do with your wife's employer changing views on FWAs. It's tough out there, and people are buckling down as much as possible. And just so you know, I do understand because although I work five days a week, I have set hours (leave at 5pm every day) and have to do my best to make sure things are covered.

As a manager (though not in an investment bank) I would second what thehuntress says. Ultimately, a manager has to look after a lot of people's interests, and we all have restraints within which we work. I have no problem with FWAs which are workable, and enable the job to be done effectively without impacting negatively on anything or anyone else. However, I have also seen several people put in FWAs where they only seem to take a very narrow view. eg only thinking about the days/hours that they want, and not considering the impact it may have on everyone else. Where I work there have definitely been one or two people who have interpeted the FWA process as a kind of 'Whoopee, I can now try to rewrite the job and turn it into exactly what suits me', which is not in the spirit of it at all.
Of course, there is no excuse for a company not following systems properly - everthing should be done within the agreed timescale.

I myself have just had my request for a 3 day FWA rejected. The motivation was very much as Findtheriver & thehuntress mentioned, however what I was told was "we are in a climate where the client needs to be chased 5 or 6 times a day so we need full time staff to do this & 3 days a week cannot fullfil this requirement". I find this laughable for 2 reasons: 1) We do not deal with clients, we deal with counterparty staff at other large investment banks & 2) If I am calling someone 5 or 6 times a day to resolve trade queries, they are going to get mighty cheesed off & will just start avoiding calls which is counterproductive. When I left before maternity leave I would send a spreadsheet & call them 2 hours later to discuss & set a deadline for resolution. My managers reason makes so sense at all but I'm not sure appealing will make any difference. Does this reason sound feasible in terms of the 8 reasons that are acceptable ?