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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience:  15 years experience of advising on employment law matters
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Hi, I'm finding myself in a tough predicament just over

Resolved Question:

Hi,
I'm finding myself in a tough predicament just over a week before I am due to return to work after being on maternity leave with my 2nd child, since mid Jan 2014.
Prior to going on maternity leave, and since I started at my company (a large company based in Northampton) I have had a flexible working pattern. I was very careful to negotiate this before starting since the job is a commute and at that time I needed to be available to pick my son up from nursery. The agreement was we would trial it - and we did, and it has stood ever since and during this time I have had 3 bosses and been promoted. No mention has ever been made the arrangement wasn't working. I have always been very careful to make it work and when business needs required I have been flexible. The sticky point I think is that although precedent is set I confirmed all of this on e-mail but was never asked to fill in a formal flexible working request to retrospectively make the agreement fully contractual.
In August I informed my then boss that I'd like to come back under the same arrangement. No issues raised. Then around a month ago the director called me saying that they would like me to move to a new role (in the same team and still under her but with a new boss). I made sure she was clear on my flex arrangement and she said I would have to discuss how to work it around the new team but she had no issues. I then also had a call with my new boss who also raised no concerns at that time - and we left the conversation saying we needed to sit down and talk about how to fit my flex around meetings and team needs. She also asked me to come up before I actually go back for a handover. I agreed and confirmed earlier this week when I am available.
At this time, she then said we needed to talk about my flex...implying that I can no longer do it as they can't introduce it. I believe she may not be clear that I was doing it before. I now face a situation where I may not be able to manage my child care and my job.
Arrangement before mat leave:
2 normal days
1 x work from home day (where I usually start between 7.30am and 8.30am)
2 x early finishes (4pm)
Half hour lunch (which I rarely take)
Agreement that I will log in at home to check for urgencies on the days I leave early.
>>> This adds up to at least the required 37.5 hours a week. I am always there by 9am but some days by 8.30/45 depending on traffic.
The WFH day is not in question, its the early finishes. I have offered to finish at 4.30pm but am yet to hear back.
I have a call with my new boss at 12noon today and given the fact I am due to return on 13th Oct I am very keen to have a solution asap. I think they will suggest a trial or 3 months of the flex so I can settle in but I am reluctant to accept that because I already, in my opinion, proved it can work.
Any advice, key phrases, actions etc welcomed. If it comes to it, I will take formal action but I would like to avoid this as I want to go back to my job which I love!
My number is: 07544 498 890
Many thanks, Claire
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. How long have you been with your employer for?

Customer:

Hi Jenny, Since Oct 2012

Customer:

20th to be precise

taratill :

How long had you worked the flexible arrangements and how much maternity leave have you taken?

Customer:

I have worked the flexi since I started there. And I started my mat leave on 10th Jan 2014. Thanks.

taratill :

You mentioned you are going back in a different role, what reason has the employer given for this?

Customer:

They often do this after mat leave. I used to manage hair care and now they want me to manage a skin care brand. The reason is to allow me to develop towards promotion. Its the same level and although I have anew boss its under the same director and VP. Same title as before.

taratill :

Hi ok the legal position is that you have the right to return to the same job on the same terms and conditions at the end of maternity leave, if you take additional maternity leave then you have the right to return to the same job unless it is not reasonably practicable for you to do so. This means that the employer cannot just switch your role to suit themselves, there has to be a good reason for it. The alternative job should be at the same salary and status and should involve the same working hours.

taratill :

Even though your original hours were not expressed as being permanent through custom and practice you can say that they were permanent hours.

taratill :

This, therefore amounts to a significant change in your terms and you can argue it is contrary to the Maternity Regs.

taratill :

I would suggest you have a discussion about this with your manager and say that you would prefer not to raise a grievance but unless you are reassured you will have no atlernative.

taratill :

Your employer cannot take action against you for trying to assert a statutory right.

taratill :

Please do let me know if you want to know anything further about this. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

Customer:

Thank you. I am due to return on 13th Oct - if we can't reach a solution before then can I insist I return with the same hours for 3 months while we work for a solution. I can't afford not to go back but at the same time I don't want to go back if its unresolved.

taratill :

I would imagine this will be resolved if you do raise a complaint in the terms I have suggested if it is not then you can ask your employer to do it for a 3 month period. I would also suggest you engage ACAS Early Concilliation to assist you in the event the greivance does not resolve matters. The details of this are at. http://www.acas.org.uk/earlyconciliation

taratill :

Please do let me know if there is anything further I can help you with?

Customer:

Thank you. I will see how my call at 12 goes. Thank you so much!

taratill :

No problem, good luck with it. Please do remember to rate my answer and come back to me later if you need to.

taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience: 15 years experience of advising on employment law matters
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