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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44874
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am returning to work after 12 months maternity leave and

Customer Question

I am returning to work after 12 months maternity leave and my employer called last week to tell me my job location could no longer be from home (as it has been for over 2 yrs) and would now have to be office based - with a long commute!! Can they do this - its the same job just a change to the location. It makes it hard for me to do the job because of the commute and impact on childcare I have for my two boys. They say they want to do it so I can be with a new team now based at this new office location. thx
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Why can they no longer allow you to work from home?

Customer: Not actually given me a reason other than they would rather I was more visible. I have had 99% performance achievement so xant be anything to do with my work. I took this job as a position whereby I could work from home as they denied my flexible working request in my last position. Forced me to resign and said they could only offer me this position if i did resign.
Customer: I forgot to say Hi!! Thanks for helping me :0)
Ben Jones :

So you have resigned?

Customer: No. I haven't given them a response yet. I just said i needed time to think.
Ben Jones :

ok ler me just my response together

Ben Jones :

ah that didn't make any sense, I'll try again - let me just get my response together, thanks

Customer: I have a clause in my contract that says if they want to change my home working arrangements then they can, but they have to give me 3 months written notice. They said the location change was effective as I return to work - maybe they don't realise about this clause... But even with this the change itself is so unreasonable and I'm sure I'm supposed to return after maternity leave so no less advantageous conditions???? All advice hugely appreciated as they are pushing me for a response.
Ben Jones :

According to Reg. 18 of The Maternity and Parental Leave Regulations 1999, an employee who takes Additional Maternity Leave (i.e. between 6-12 months off) is entitled “to return to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.”


 


This means that there is no guarantee of a return to the job you performed before going on maternity leave. If the employer can show that it is not reasonably practicable to allow you to return to that job, they need to find you something that is both suitable and appropriate for you to do instead.


 


A common issue that arises is whether the reason for not being reasonably practicable to allow the employee to return to her old job is actually justifiable. The employer needs to show that there is a genuine reason which makes it no longer practicable to allow you to return to your old job, this is not just a formality.


 


There may be a clause allowing them to make changes to your location. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.


 


In terms of taking the matter further, the options available to challenge this depend on what has happened so far:



  • If your employment has not terminated but you are unreasonably being denied the opportunity to return to your old job, that could amount to pregnancy and maternity discrimination and/or unlawful detriment

  • If you have been given an alternative job which you find unsuitable, then you could resign and make a claim for constructive dismissal and/or sex discrimination.


 


Each of the above claims will be made in the employment tribunal and you can seek compensation for loss of earnings and/or injury to feelings.


 


Finally, you can try and continue working at home by submitting a formal flexible working request. The employer has a duty to seriously consider it and can only reject it on a specified number of grounds.

Customer: Thanks for this. In all honesty i don't even want to go back to work at all! After such an exhausting flexible working request ordeal last time that they denied and then forced me to resign - then i don't really want to take this on again unless i have to. They are fortune 50 company so huge US business. Im looking for a way out i suppose too. Ive also got post natal depression so a huge commute would set me back too. What would be your final recommendation knowing this also? They are a machine and have also previously told me its a full time job and i should never have been given the role part time. Thx so much.
Ben Jones :

It seems like the best way forward may be to try and negotiate a settlement agreement with them, where they pay you off to leave

Ben Jones :

you can approach the subject with them as they may be unwilling to start off the negotiations

Customer: Is it in my interest to try and get something from them in writing?
Ben Jones :

for what?

Customer: That says what the terms are they want me to come back on and effective date - in case i end up going down the breached contrzct avenue. Or is their verbal notification enough? Should i point out about the clause or am i under no obligation to do so? Really appreciate your help.
Ben Jones :

I see, alwat

Ben Jones :

always best to get things in writing

Ben Jones :

then you have a paper trail to refer to

Customer: Would it change things if they came back to me and said they honour the written notice they should give me? I still think its unfair yo ask of such an impactful change of me as a returning mum. I just wouldn't see my boys 4 days a week :0(
Ben Jones :

well that was covered above I think - such terms do not always give the full discretion for the employer to change what they will and the employee's circumstances will also be considered

Ben Jones :

Hi are you atill here?

Ben Jones :

*still

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44874
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Hi, may I ask you one additional question please as I have more info on this. I will of course pay a bonus. My boss has said i cant work from home as I have to support a new director in stoke office. I used to support the old director there but he was northern europe focused and now this new guy is just uk focused and they want me to make sure he is seen to be doing good job. I supported last director fine from home and was given 99% appraisal. My boss has sent me an email confirming that she wants me to start being office based from Jan ( nit giving me a 3 month notice as per my contract) and then when i told her i thought it was unreasonable she emailed me again to say she had been told off for not handling this via hr and i now had to talk it iver with hr present. Its all been managed haphazardly. I feel they have put me in a corner as i cant do all that travel. Would be 700 miles a week and an extea 12 hrs in the car plus excessive additional childcare costs. What would you advise i say to hr? Thx so much
Expert:  Ben Jones replied 2 years ago.
Hello again, the main issue here is whether it is reasonably practicable for the employer to allow you to return to the old job or if there really are genuine reasons as to why this may not be possible. I cannot comment on whether their request is reasonable because this really depends on the needs of the business, what would be expected of you in terms of the job you are supposed to do, etc.

I agree that the extra commute, time and costs is going to be unreasonable for you to continue in this job but that would not necessarily b an issue that the employer will be concerned with, because they only have to show it was no longer reasonably practicable to keep you in your old job.

Whilst the fact this was not dealt with through HR when it should have been is not ideal, it would not change your legal position or that of the employer's. It is more a nuisance because you may have to go over the same grounds with HR as those that have already been discussed. When you discuss this matter with them it is again important to ask for full details of why it is no longer practicable to keep you working from home and ask for a formal justification.

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