Flexible working

[purejayne]

I have worked for my employer for 11 years. About six years ago after I recovered from cancer I requested that my hours at work be reduced from 35 to 33. My hours at the time were Monday-Friday 9 -5 and I was allowed to reduce them by being able to leave at 3.00 pm on a Tuesday and a Thursday afternoon. At the time I requested two hours off on a Friday instead of a Thursday as I have a young son. This was refused on the grounds that I work for a solicitor doing conveyancing work and completions on properties mostly happened on this day, thus making it the busiest day of the week. I conceded to this and have been on my current hours ever since.

 

I have recently discovered that my colleague who does the same work as me and works 35 hours a week has applied to reduce her days from a five day week to a four day week and she is taking the Friday off. I am amazed that she was allowed as when I requested a Friday I was refused. Also, if she takes the Friday off I will be left on my own with a fee earner to deal with masses of completions plus telephones/reception and queries from clients.

 

Upon raising an objection to this I have not received a satisfactory answer and things remain the same. I'd like to know:-

 

1. Is my employer allowed to do this or does this amount to discrimination bearing in mind that I asked and was refused?

 

2. Am I entitled to now ask my employer to change one of my days to a Friday and can he refuse?

 

3. My workload will be bound to be heavier now as there is only myself on a Friday to deal with all the extra work. Is this allowed?

 

Any advice would be greatly appreciated.

[Guest Old_andrew2018]

You could PM people on the forum with HR experience, such as Ell-enn , with a link to you thread.

Alternatively the site team could direct someone with expertise to your post, to do this click on the red triangle located below you name, this opens a dialogue box in which you can leave a short message for the site team, it does work.

 

Regards

 

Andy

[purejayne]

Thanks Andy.

[42man]

Hi Jayne...i've asked somebody a little more knowledgable than me to look in.....be patient if you can...

[purejayne]

Thank you very much - I appreciate it.

[42man]

Jayne....you may not get an answer until tommorrow....but keep checking back if you can.

[Sidewinder]

Hi there Jayne - sorry that you have not received a prompt answer to your questions.

 

On the face of it this seems to be unfair treatment, and most definitely shows a lack of tact on the part of your employer. There are however certain points which may make his actions justifiable.

 

Could I ask what the reasons were for your colleague requesting a flexible working arrangement, and did she specifically have to take the time on a Friday?

 

The reason that this is important may provide a pointer to the apparent injustice of your situation. You say that 'about six years ago' you applied for a flexible working arrangement as you recovered from a serious illness and as you had a young child. It would appear that your employer accepted part of your request but was unwilling to accept your request for time off on a Friday. He therefore met you part-way on a request for flexible working aven though at that time the right for parents (and certain other people) to request flexible working may not have been in existence (the clause was inserted into the amended Employment Act 2002 and became Law on 6th April 2003). Even if your request was made under the terms of the Act or in anticipation of it, the employer is not obliged to accept any such request so long as the refusal may be justified. In your case it would appear that he was willing to accept part of your request and justified the reason for not being prepared to go all the way. So far so good, but now things get a little trickier, and I am only supposing but stick with me!

 

Supposing that your colleague has now made a similar request, and she has done so under the terms of the Act (which enables flexible working arrangements to be requested in order to care for a child under six or a disabled child under 18, or have a carer's responsibility for an adult living at the same address). Providing that she meets these criteria and has worked for the employer for at least 26 weeks, then the employer must consider the request. Now having already set a precedent for flexible working by accepting your request in the past, should he not accept your colleague's similar request, even though her requested day off of a Friday is inconvenient, then far from discriminating against you, he may be deemed to be guilty of discriminating against your colleague's status as a parent (indirect sex discrimination). Had she proposed having a day off, but not neccessarily a Friday I would imagine that your employer would have made sure that another day was offered, but on the assumption that she has requested a Friday and it could be no other day for reasons X, Y and Z then he would have had the dilemma as I have described.

 

Now as far as your position is concerned, if you have a child under six, a disabled child under 18, or are required to care for an adult living at your address, then you would have a right under the 2002 Act to be given the same consideration as your colleague, but if you do not meet the criteria, then unfortunately you do not. A request may be made once a year providing that you are eligible, but once accepted may be deemed a permanent change to your contract.

 

As I say, all of the above is based on an assumption of your colleague's circumstances and you may well reply that she only wants the day off to go shopping or to simply put her feet up, and if that is the case then your grounds for complaint are greater. In those circumstances you should file a written grievance claiming unfair treatment.

 

In summary:-

 

1. Is my employer allowed to do this or does this amount to discrimination bearing in mind that I asked and was refused?

 

Your request was made (apparently) before April 2003 so for the purposes of discrimination it would be irrelevant. The fact that the employer had though permitted you a flexible working arrangement may (subject to the colleague's request being made to care for a child) have meant that he was more obliged to accept your colleague's request. Whereas you were more flexible about the days involved, your colleague may have had to have Friday off and there was no flexibility to this. His actions will only be discriminatory if you still meet the criteria to request flexible working and he refuses your identical request.

 

2. Am I entitled to now ask my employer to change one of my days to a Friday and can he refuse?

 

Only if you are eleigible at this time to make a request for flexible working (child under six, disabled child under 18 or are a carer for certain adults and have to have a Friday off and it cannot other day. In those circumstances the employer would find it difficult to decline.

 

3. My workload will be bound to be heavier now as there is only myself on a Friday to deal with all the extra work. Is this allowed?

 

It is certainly allowed, but equally you are entitled to protest. File a formal grievance claiming that the workload has become unreasonable and no additional help has been provided nor work removed in order to make up for the fact that a member of staff is no longer available to assist on what is by the employer's own words, the busiest day of the week.

 

Naturally you are able to raise a grievance with your employer about any aspect of the case, in particular the apparent unfairness of giving a colleague the time off that you were refused. If the employer has good reason to have done so (and what I have outlined is just a scenario) then I think it unlikely that you will get anywhere. It is most certainly not discrimination, as this can only be argued on grounds of sex, sexual orientation, race, religion or age.

[purejayne]

Hi Sidewinder - thank you so much for your detailed reply.

 

In answer to your question about my colleague - she is a 62 year old woman with no dependents and does not have to care for anyone. The reason she wants a Friday is because she wants a day off attached to a weekend. She cannot have the Monday because our main fee earner has that day off and hence she has requested the Friday because she says she "is not prepared to have a Thursday off and come in on a Friday". This to me is totally unjustified. What do you think?

[Sidewinder]

Hi Sidewinder - thank you so much for your detailed reply.

 

In answer to your question about my colleague - she is a 62 year old woman with no dependents and does not have to care for anyone. The reason she wants a Friday is because she wants a day off attached to a weekend. She cannot have the Monday because our main fee earner has that day off and hence she has requested the Friday because she says she "is not prepared to have a Thursday off and come in on a Friday". This to me is totally unjustified. What do you think?

 

In that case you are perfectly justified in letting go with both barrels!

 

As suggested in my first post, you need to raise this as a written grievance . Your gounds for doing so are that having previously requested an arrangement whereby you were permitted time off on a Friday to care for your child, you accepted and understood that due to the increased workload on a Friday this would not be possible so reluctantly accepted an alternative. You are therefore surprised and confused that a colleague has now made a request which falls outside of the right to request flexible working afforded by the Employment Act 2002, yet this has been granted. Not only has the decision caused you to feel that you have been unfairly treated (as the same reason for denying your request seems not to have been an issue in permitting the colleague to take Fridays off), but the resulting reduction in staffing levels is likely to significantly extra work on what is the busiest day for conveyancing work so is almost certainly going to create an extra burden for those remaining. You do not believe that your colleagues request for an extra day off was justified in terms of an employee's right to request flexible working whereas your original request although made some time ago was at the time more than justified and consequently you have had to make sacrifices as a parent and have been denied the opportunity to spend more time with your child as a result. In the circumstances you believe that their actions now make their decision with regard to your circumstances unfair. Whilst you value your employment and enjoy working for XXX, you are disappointed to have been treated differently to your colleague. Regrettably having already raised this informally and having not been provided with a satisfactory response you now feel compelled to lodge an official grievance and would appreciate a meeting to discuss the situation and a written response at their earliest convenience.

 

That will hopefully start them thinking, although in practice you will find it difficult to claim that their actions have been discriminatory as such due to the extended timeframe involved. It is more of a case that they are guilty of double standards. It would have been interesting if your child was still under six and you could find a reason why you must have time off on a Friday as I think that they would then be on very sticky ground.

[callumsgran]

Hi Sidewinder - thank you so much for your detailed reply.

 

In answer to your question about my colleague - she is a 62 year old woman with no dependents and does not have to care for anyone. The reason she wants a Friday is because she wants a day off attached to a weekend. She cannot have the Monday because our main fee earner has that day off and hence she has requested the Friday because she says she "is not prepared to have a Thursday off and come in on a Friday". This to me is totally unjustified. What do you think?

Flamin eck thats disgusting!

She's already got every weekend off (which is more than most get)

At 62 she should be retired anyway IMO

[Sidewinder]

Flamin eck thats disgusting!

She's already got every weekend off (which is more than most get)

At 62 she should be retired anyway IMO

 

I detect more than a hint of sarcasm there

 

It isn't an age thing, more about being even handed.

[purejayne]

Wow!! Sidewinder - you are amazing - thank you so much. I've got my appraisal in a week or so and I'll hand them a letter stating what you've quoted. I knew deep down this couldn't possibly be fair but I didn't know if there were any grounds for me to raise a grievance. I will let you know how this goes. Its caused me immense stress up to now and I feel so much better now.

[purejayne]

Callum - that made me laugh - my thoughts exactly

[callumsgran]

I detect more than a hint of sarcasm there

 

It isn't an age thing, more about being even handed.

You're right i was being a bit sarcastic, it's so annoying though

She should've retired but hasn't, she then starts demanding 3 days in a row off!!

Flaming cheek, she should be lucky someone still employs her

 

Callum - that made me laugh - my thoughts exactly

Glad to be of help hun lol