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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50154
Experience:  Qualified Employment Solicitor
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Hello, I am currently on maternity leave and I have requested

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Hello, I am currently on maternity leave and I have requested to work from home on my return. My HR department have proposed that I am office based for 2 out of 3 working days per week for the following reasons:

​Facilitating an effective handover:
• The Company considers that it will facilitate a more effective face-to-face handover with the current GIS team members than would be possible if you were working remotely. The Company considers that it will not be possible to carry out an effective handover while working entirely from home since in person interactions with colleagues and physical presence in the office will facilitate the clear communication of ongoing tasks/projects and future planning discussions;

Relationships with key stakeholders:
• It will help facilitate better relationship building with key stakeholders and ability to meet customer demand, as the Company believes that personal interaction in the office creates a team-focused, engaged and cohesive culture which allows us to best serve our customers; and

Service to company and communication:
• It ensures the position is providing the optimum quality of service to the Company, which in the Company’s experience is best achieved through daily interaction with colleagues in the office and the use of face-to-face meetings where possible.

My question is: should I, and how do I go about appealing this? It has taken them 7 months to reach this decision. In my original request I explained that I need to be home based to facilitate childcare arrangements. My commute to the office is 1hr 45 mins each way.

I was told when I submitted the request that if it was for immediate start the response would be 'yes'. I also had received approval from my line manager (but not HR) At the time. My line manager has since changed.

Any advice would be hugely appreciated

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. firstly can you tell me how long you have been with your employer please

Customer: Almost 9 years as a full time permanent employee
Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Customer: Thank you
Ben Jones :

When a formal request for flexible working is made, an employer can only reject it on a limited number of grounds. These are:

  • Planned structural changes

  • The burden of additional costs

  • A detrimental impact on quality

  • The inability to recruit additional staff

  • A detrimental impact on performance

  • The inability to reorganise work among existing staff

  • A detrimental effect on ability to meet customer demand

  • Lack of work during the periods the employee proposes to work


In addition, the employer has a duty to explain their rejection in writing. They must state why the specific business ground applies in the circumstances and include the key facts about their decision. These should be accurate and relevant to the reason used.


However, when selecting the ground for refusal the test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged.


Therefore, if the employer has not relied on one of the set grounds to justify their refusal, or the facts they have used are incorrect or unreasonable, the decision can be appealed first before a formal grievance is raised. If that does not help, a claim can be made to an employment tribunal. The available grounds to challenge their decision are:

  • The employer failed to hold a meeting, notify their decision or offer a right of appeal

  • The reason for refusal was not for one of the allowed reasons

The rejection was based on incorrect facts

The claim should be presented to the tribunal within 3 months of either the procedural breach or of the date on which the employee is notified of the appeal decision.


  1. However, I must stress again that you can only appeal on one of the above grounds and not if you simply disagree with the decision, so ensure that you can show at least one of these applies before taking this further.

Customer: So if the company think that working relationships are better face to face, then that is enough justification? Should I ask them to explain why this has changed in the last few months as they had said at the end of last year that their response would have been Yes
Ben Jones :

yes but it must fall within one of the above-mentioned reasons. So if they can show that it falls within them, they can rely on it as a reason to reject your application. You are indeed able to ask for further details and for justification if necessary

Customer: I'm not sure what you mean by 'falls within them'
Ben Jones :

well there is the list I provided above - as you can see the specific reason they have used that working relationships are better face to face is not one of them, but it could fall within one of those reasons, for example if it results in a detrimental impact on work quality, which is one of the reasons

Customer: Oh, I think I understand, it must fall within one of the reasons. So I guess they are saying that a face to face relationship is better in terms of quality than a telephone one. Does this justify my needing to go to the office every single week, or could I argue that a relationship can be maintained with a monthly face to face meeting?
Customer: Especially as many of my stakeholders are not in the office themselves every week
Ben Jones :

that is unfortunately for the employer to decide but you may certainly ask them to justify why it is so important for you to be there

Customer: They have also suggested that we make a change to my ongoing contract effective January 2015, and that we decide the detail in December 2014. I am due to finish mat leave in Sep 2014. I am nervous about their wanting to delay the actual contract change until after my mat leave has finished because I had thought that being on mat leave gives me additional rights, do I need to be nervous ?
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.

Ben Jones :

However it does not mean you need to be nervous yet and you have to see in good time what the employer has to offer, there is of course no guarantee it will be negative for you

Customer: Ok, thank you. I'm a lot clearer about what I need to ask them
Ben Jones :

you are most welcome, all the best

Customer: My ipad is not letting me select a rating :-(. Is this a known problem
Ben Jones :

I am afraid so, you can just type it instead, thanks

Customer: Good
Ben Jones :

thanks, XXXXX XXXXX process, all the best

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