Indirect Sex Discrimination- next steps

[Moneyspider]

My appeal against my employer's refusal to allow me to perform some of my duties from home when I return from maternity leave(even for a trial period) has been unsuccessful.

The general tone of the correspondence has been such that it would be fairly unpleasant if I were to return to the company. As such, I want to exit the business, but other similar jobs are rare in the area at the moment so it could take be 3-6 months to find something else.

I really believe that my employer's failure to allow any homeworking (I am an in-house commercial contracts lawyer, no staff) is unjustifiable indirect sex discrimination.

Our grievance procedure is short and sweet and would involve contacting the same individuals that have just refused my FW application/appeal.

In the circumstances, should I:
(a) contact HR and ask them how to raise this particular grievance;
(b) raise the grievance with the same people who have just refused my application;
(c) put in a questionnaire in advance of raising a grievance; or
(d) some other course of action.

Follow whatever your grievance procedure says. Copy in HR as well even if it doesn't say to do that. If HR or whoever thinks the grievance should be heard by someone else, then that will happen. If you would like it heard by someone else you can also ask that, but in terms of actually addressing the letter, do whatever the procedure says.

I wouldn't wait to do a grievance until after a questionnaire. Employers have ages to complete a questionnaire and bearing in mind the time limits for a tribunal claim, I'd get the grievance step done and dusted straightaway.

Have you got yourself an employment law solicitor yet? Obviously you can put in tribunal claims/discrimination questionnaires yourself, but for something like indirect sex discrimination and possibly constructive dismissal as well, I would strongly recommend you get a specialist employment lawyer to advise you.

Take flowery's advice and try to resolve this inhouse and amicably where possible.

Claiming constructive dismissal is really, really tricky and all you would expect to get if you won would be how much it would cost you to get another job and maybe a relatively small amount (when compared to your salary) for injury to feelings.

What is it about the correspondence you've received that would make it difficult to return to work? (other than your home working request being declined?)

What business reason did they give you for turning your request down?

And why do you believe this is indirect sex discrimination? It is a policy about not allowing homeworking? Is anyone else allowed to work from home?

Flowery, JAMM, thanks.

I haven't got a specialist yet.

The tone of the correspondence was along the lines of "As your manager, I think your request will result in loads more work for me and we all agree here that you haven't given the needs of the business any thought when you put your application together".

The business reasons were many and varied (and framed to fall within the categories), but all were based on assumptions about whether my internal clients would be likely to contact me if I wasn't in the office or whether they would simply seek the advice of another member of the team (resulting in more work for them).

In fact, the culture of the place is such that they just don't want to allow home working. It is viewed with suspicion and there is only once person they mentioned (a male with a completely different job) who does it officially (though sales teams are of course based on the road). I think the policy is one that is statistically more likely to disadvantage women than men and for those women who do not really have to be present in the office for the whole of their contracted hours, their policy is unjustified.

Probably time to call for help..practical law can only take me so far

FWIW I think they could actually have a point about people asking for help from people in the office rather than you even if you still working, just at home. I do a comparable job to yours and a colleague has been working at home 2-3 days a week for the past month or two. In that time I've actually spent quite a bit of time dealing with queries they would otherwise have dealt with whilst they are WFH, doing more than my fair share of going to meetings where one team member needs to attend in person etc. Partly becuase when people turn up at your desk wanting a chat about an issue its pretty hard to insist they phone my colleague instead.

Now your situation may be different but whilst my colleague is perfectly happy to speak to people/dial in and isn't intending to increase my workload, in practice it has.

Yes definitely get a specialist.

Interesting point about more work for colleagues because internal clients will prefer to use them rather than you when you are at home. I think that's probably true, but of course the point is it's perfectly easily dealt with if everyone is firm about referring people to you when it should be you. People get used to things very quickly.

x-post AxisofEvil

The thing is Flowery, being firm is much easier said than done. It depend how far your client base if firmly split (I have A, B and C, you look after D, E and F) but to the extent there is any overlap then all other things being equal most clients will generally prefer the person they can speak to in person. Also calling someone at home, even though they are WFT can feel like something of an intrusion. It may be the nature of my work is different but we get random visits/calls for help and requests to go to meetings at short notice (not necessarily as possible or convenient for everyone else to have someone dialling in) a lot. In my situation my colleague WFH is not expected to be permanent - I'll tolerate it for now if it were fixed I wouldn't be happy at the impact it is having on me.

If the OP is able to get to a situation where she can go back and agree with employer to WFH some of the time I would strongly recommend that she approaches her clients and gets their full buy in and understanding to the arrangements so they understand that she is still their main point of contact and she remains available to them to exactly the same extent, although not face to face quite so much.

Anyway, just to be clear I don't say any of that to be unsupportive of the OP, just wanted to give another perspective.

Hope things work out for you Moneyspider.

Axis, sorry the flexible working isn't working out at your end. My suggestion involves being in the office every day between 10 and 2.30, so I would hope that contacts would subconsciously organise meetings where possible when I am in the office.

Flowery, will have a ring around. Most heavyweight firms in the area only want to act for the corporates though- or are conflicted out of acting for me!

Axis, x-posts.

The buy-in aspect is so important isn't it? I think that some organisations try to keep flexible working quiet- a sort of "don't broadcast it, or they'll all be at it" approach. That may just be my experience though!

My work pattern sounds similar to yours, though our team all have particular specialisms on top of the common or garden issues that come along. As such, there are certain clients/areas that I would expect to deal with exclusively- and plenty I wouldn't want to go near!

Moneyspider, a couple of other thoughts that occur to me with a devil's advocate hat on:

• working 10-2.30 in the office does have the advantage of being in daily but unless you live next to the office presumably you'd then have travelling time in the working day? I'm sure you'd still be intending to work the correct number of hours at other points but one thing you'd want to be ready to answer is if you going to be travelling for eg 40 minutes either side of your time slot, that would basically mean you wouldn't be available for calls etc 9.20-10 and 2.30-3.10. So if there are meetings at that time you'd be expected to be involved with in person or by phone (because you can't expect everything will always be arranged around what works for you), how would you expect them to be resourced?

• What happens when you reach 2.30 but are in a long negotiation - are you going to just leave (which you may need to if childcare is arranged around it)? Appreciate you'd maybe still need to do at 5-6pm if you were full time in office but its more "accepted" then IYSWIM?

• are there meetings someone needs to attend at the start of end of the day eg 8am or 6pm? If so, are you going to be able to attend these at all or do team members need to pick up

• is there any chance of moving into a different sort of role eg knowledge management or projects, where availability for client contact may be less of an issue?

I don't of course mean you have to answer here but if I were your boss these issues might be the sort of things I might think about. Hope that might be helpful.

Yes, indeed they were covered comprehensively in the original FW meeting and subsequent appeal. Can't think of any other roles at the moment, but will give some thought. Thanks for the suggestion!

Have you spoken to ACAS (0844 875 0087). They are usually pretty good as a starting point on the chances of your case and how to proceed.

Axis, in your view, how soon after the arrangement starting was there a noticeable adverse impact on your workload?

Well, I suppose that for the first few days or so it was easier to try and say "could you give X a ring as she is working or she will be in tomorrow if you'd like to discuss in person". But I think before long clients got bored of being passed (in their eyes) to the person who wasn't there to talk to/pop to meetings with/look over documents with (yes you can use the phone but not the same) and would start saying "couldn't we just talk about it now", which is hard to say no to. It then took a bit of time for me to really notice IYSWIM in that it would only be when reviewing my work load I'd realised that I was spending more time on the general queries/small matters than I should be doing. You then tend to find that if more work comes out of it (quick queries are rarely just that) you end up taking it on - after all the client doesn't really want to be passed on.

I think you'd also have to expect that in practice your relationship with the clients may suffer a little and you may not be their first choice. As such you might find that you end up with less good work than you might also expect. However you may think this is a price worth paying for the flexibility you want.

It also just reminds me that many years ago I worked with someone on a full time project with someone who was a relatively orthodox (not sure I'm using the right phrase here) Jew. As such she had to leave early on a Friday to ensure that she was home before sundown as her religion required. What this meant though that basically I had to deal with everything from Friday lunchtime (was winter) onwards and I ended up working a lot of Friday nights to get all our work done. But there was never any recognition from her that this was an issue eg by saying "tell me what needs doing and I will pick it up on Sunday". Anyway, point of this is to say that your boss may be concerned that whilst you're not asking for afternoons off, they would always the one who people come to with that "very quick" (ie not very quick) query at 5.25 as you're not there. Does that make sense?

Money -

Can I ask a very personal question?

Your homeworking request is very unusual. Most people who ask for home working ask for one or two days to cut out the travel time. If you're in every day then that obviously isn't your reason. Why did you want to work from home and what are your childcare arrangments?

I can also see from a 'devils advocate' point of view that there would be difficulties with you being out of contact for presumably at least an hour within each working day whilst you travel. As well as wanting to talk to the person who is there, there is the element of your working times not tallying up with other people's. It also basically rules you out of any calls before 10am as would have to have them very early to then travel in. How did you feel that this could be addressed?

I agree with all the devil's advocate points raised thus far!

If you're not reducing your hours to 10-2.30 but are planning to work a whole day but partially at home partially in the office, I'd find that less acceptable than someone working a full day from home tbh. If someone is doing a normal working day but at home, everyone knows they are available as normal during normal working times, and the only difference is on those days they aren't physically in the office.

You are talking about actually reducing your availability, not just changing the location of your work. That's not to say it isn't workable, but for me a day or two at home a week would be preferable.

I agree AxisofEvil that in practice it's not as simple as being firm, that was a bit flippant. I think my point was it's not nearly a good enough business reason for refusal as there is a way to address it, or at least to try to address it, that may be easier for some than others but doable

Yes, Axis, complete sense. I requested a 3-month trial of the arrangement to see if it could work in practice. From what you say, that might have been long enough to flush out the shift in workload.

Ribena, I've simplified the facts a little. In fact, I first applied to work three days in the office and two from home for four main reasons:

1. Dropping off and collecting from school
2. Eldest child (3) has had issue at local playgroup (Ofsted involved; manager suspended as a result) meaning he is anxious at the moment. He (and admittedly I) would feel better even if nanny could say "yes, mummy's just down the garden in her office working- look there she is waving".
3. I plan to continue breastfeeding. Ideally, I wanted to do that without expressing because DS2 has refused all other forms so far!
4. General reduced travel, stress etc.

During the course of the meetings/correspondence, I agreed to increase my proposal to 5 days a week in the office, to try and satisfy the culture of presenteeism. The arrangement was proposed as a three-month trial, ramping up to two days a week fully in the office by the time DS1 was in year 1 at school and five days fully in the office by the time DS2 was 3. Core hours of 10-2.30 in the office, remainder to be worked from home between 7-6. Usual working day is 8-5.30.

In terms of childcare, this is now a little up in the air! DS1 starts at the local prep in April (was going to be Sept, but owing to Playgroup issue, have removed him from that setting and brought forward by a term). I had found a great nanny for DS2 who (although she couldn't drive) would generally have been perfect. I haven't been able to commit though so lost her and DH would prefer DS2 to be in nursery with other children. He thinks a "mother's help" or similar a few hours a day combined with a daycare setting would be better. But I digress.

Ribena, yes in theory. In practice, though, I don't have that many appointments and I look after the interests of group companies who wouldn't know me if they fell over me. My specialism is non-contentious IP and most of my work involves drafting. I offered to be in the office if advice were needed that couldn't be provided (a)by telephone or (b) by email or (c) wait until I was scheduled to be in the office.

Very grateful for all your responses- it's helpful to see other views.

Money, how do you normally deal with clients? Both internal and external? I think that's the crux of the matter really. The business will want as much to stay the same as possible. If you usually work from a variety of different sites and the majority of contact is non-face to face that is obviously easier to translate to homeworking.

Your proposal sounds overly complicated. Do you think it is possible that in all the discussion some of the substance has been lost? What I mean by that really, I suppose, is have you and your line manager ever sat down and had an informal discussion about your needs and how you could both make it work? Or has it all been in writing?

I also think that as there is no specific policy against homeworking and there is a male homeworker you can't argue indirect sex discrimination (but I am not a lawyer so just pontificating).

All in writing and, now it's written down, you're right, it's lost strength along the way. Am pissed off with myself really. The sales director took the appeal meeting and I think I've ended up negotiating against myself. I knew there was a reason we paid him that much!

Do you think there's any possibility you could go and see your boss face to face for an informal chat about it all? It might just defuse the entire situation and save you spending out on legal costs that you possibly won't recoup.

The trouble with doing these things in writing is that it's so open to interpretation and consequently misinterpretation.

I am assuming that your ultimate aim is to return to work, with some home-working/early finishing flexibility factored in and to have a good working relationship with all of your colleagues. And IMO an informal discussion is the best way to do this. But it must be in person and away from distractions.

The other benefit of doing the face-to-face meeting is it will give you a true idea of just how far the relationship has broken down and if you can save it.

Oh I see, it was a compromise proposal. Makes more sense now!

I agree, if your aim is to return, I'd get in there for a face to face meeting as informal as you can manage. The general line would be "if you don't think this would work, and you don't think my original plan would work, what would work." If nothing else, if they say "nothing but full time in the office" you'll have firmed up any subsequent case as they clearly wouldn't have an open mind!