Duty to make adjustments

[Lynnzer]

Doing this for my son't partner.

She is a new mother, birth was in November.

She was working full time prior to the maternity leave.

 

She knows she will be unable to do a full working week after maternity leave but can manage a 3 day week with babysitting undertaken by myself of other person.

 

She wrote to her employer and asked about them allowing her to drop to a 3 day week and after around 22 days they responded and said no. They made no other alternative arrangement or suggested anything that would be suitable to her. All they said that they could maybe do something if she (she mind you) found someone to job share with her.

 

Now, other staff in the same situation have received favourable treatment and been allowed to come back on a part time basis. One has been allowed to drop a grade and do this and others have been allowed back in their previous position, which happens to be the one my son's partner enjoyed, ie supervisor.

 

I need to be able to build up a case for her as best as I can.

I don't really want to sink her boat by being aggressive but want to gently persuade them to keep her on in the capacity she wants.

 

If she starts to wave the law in front of them they may well get their back up, allow her back and then go for her dismissal asap on trumped up charges.

 

So, what I need to do is to first understand what her legal rights are anyway, then try and build a bridge from that knowledge.

The law seems to favour pregnant women and has rights on maternity leave etc but as being a mother isn't a disability I don't know if the Equalities Act applies in this scenario.

 

I believe that time scales apply too on maternity leave, time to respond to letters etc. I also believe that the time to respond to her initial written request was way outside of the period allowed but don't know how useful that would be anyway.

 

Input will be very welcome.

[Grotesque]

Well, the relevant legislation is generally focussed on the returnee keeping their extant T&Cs rather than changing them.

 

Is she returning from Ordinary or Additional maternity leave?

[Lynnzer]

I think the usual period of maternity leave is 26 weeks but she intends to return in September which makes it 9 months so more than likely it's extended leave.

[Emmzzi]

in her formal flexible working request she needed to address how the work could be covered. Did she?

[Grotesque]

Fair question. The OP says that the company 'could maybe do something if she (she mind you) found someone to job share with her.'

[Lynnzer]

This is a draft appeal.

I need some OK's for this as far as legislative matters are concerned. Any other amendments etc are more than welcome to be presented.

I refer to your letter of 27th March 2014 in respect of my request for you to consider my Statutory Right to apply for an agreement for flexible working.

 

I refer you to the Employment Act 2002, the governing legislation.

 

This Act gives me the right to request such an arrangement and that it must be properly considered by the employer. A reasonable adjustment to my working hours should be given due consideration within that legislation.

 

You will know that I am at present on maternity leave and that I am therefore a mother with a dependant child within the 26 weeks since birth. This fact underlines my right for the flexible working under the provisions for maternity reasons, and as such I am claiming within a protected period.

 

I gave you notice that I wished you to consider my working week and to accept that it could be reduced to 3 working days rather than the 5 days at present. This being for the necessary purpose of caring for my child. You acknowledged my statutory flexible work application but failed to address all of the submissions made by me.

 

I gave you an alternative to reducing my working days as a Team Leader by my taking on the lower rank of plain negotiator if such an arrangement was thought to be not in the interest of the company.

 

I now address each point of your response.

1. You have failed primarily to consider my request within the necessary time-scale laid out in the legislation. A failure to comply with 80.G.1 of the Employment Act is one which is a cause for complaint to the Employment Tribunal

(a) Following the interview arranged to discuss my request you had a period of 14 days in which to respond. Your letter of refusal was dated the 27th of March therefore being 10 days beyond the limit.

2. I now address the reasons for refusal.

(a) You state that my request has been refused as a result of my being required to work within optimum times to maximise cash collection and to close cases. I submit that the optimum times are exactly the times I am already contracted to work and I have not requested anything different. Since the courts, insurance companies and partners of the company work within normal working hours during the daytime your reason for refusal on this basis is unreasonable. You have not given any reason to explain how the normal daytime hours I am contracted to work and which are those same as I request on a part time basis are not the optimum business hours. I am at a loss as to how working during the daytime hours would result in my not being able to contact anyone you mention; from the courts to the partners.

I am not requesting working hours on an evening or night-time which could well be construed as not being the optimum hours.

(b) Your assertion that my working outside of the optimum times would result in insufficient work for other employees and would increase staffing costs and company profits. You have not explained, nor can you, how this assertion is arrived at when the hours I am asking for are the same as I have always worked and are the optimum times.

© You state that my request does not fit in with the service demands that you need to meet. I put it to you that this is entirely fictitious. The service demands are primarily contacting the people who we chase for payments, the courts and our clients which are necessarily during normal working daytime hours. You have failed to address why such an assertion is made. You have not explained how you have arrived at this opinion and why this was not discussed at our meeting where it may have been addressed at that point.

(d) You state that as a coach my role involves the training and coaching of employees on the team. This is accepted, however you fail to address why such a position and responsibility cannot be undertaken in 3 days rather than 5 days. My employment as coach to a team has been exemplary and I have no reason to suspect that I would not be able to continue to achieve the leadership results I managed prior to my maternity leave. You have not explained why this would not be the case and why I could not coach a team just as effectively in 3 days when I devote my full working day to ongoing training and leadership.

(e) The above reason for refusal is prejudicial as the same request for exactly the same working arrangement by another coach was accepted by you. You will be aware that in the case of an Employment Tribunal any comparator of cases similar to my own will be applied in support of my claim.

(f) Since I was also considering the wider needs of the company after an initial suspicion that my case would be unfavourably considered I made known in my request that I would be willing to forego my current position of coach and to reduce my status to that of negotiator, my previous status. This is a position which is more open to part time work since there are always vacancies for this work. By accepting this possibility there would be no performance or impact on the company’s working objectives. I offered you this compromise and you failed to address this as part of your considerations, or at least to address it in your refusal. I would suggest that an acceptance of my move to that of negotiator would be within the parameters of you “making a reasonable adjustment” to my working hours and employment status and would be looked upon favourably in any Tribunal claim.

(g) The right to request flexible working puts on you, the employer, a duty to make any necessary adjustments within the requirements of the Employment Act 2002.

(h) The reasons for rejection need to be within set parameters within that Act and your refusal does not meet the necessary criteria.

S.80G.1 of the Act gives the reasons for rejection as follows.

I. The burden of additional costs

II. detrimental effect on ability to meet customer demand

III. inability to re-organise work among existing staff,

IV. inability to recruit additional staff,

V. detrimental impact on quality,

VI. detrimental impact on performance,

VII. insufficiency of work during the periods the employee proposes to work

VIII. planned structural changes, and

IX. such other grounds as the Secretary of State may specify by regulations.

(i) How these requirements are met by you

I. You have failed to show why there would be any additional costs:

II. you have failed to show where there may be any impact on customer demand;

III. you have failed to show how you cannot reorganise work especially since this has already been accommodated with others in a similar situation,

IV. you have failed to address the recruitment issue and I put it you that it isn't something worthy of consideration anyway,

V. You have failed to show why there would be a detrimental impact on quality

VI. You have failed to show why there would be a detrimental impact on performance

VII. You have shown that my usual working hours are the optimum hours so you fail in giving a rational reason as to why there would be iunsufficnet work in the period I am already contracted to work

VIII. As far as I am aware there are no structural changes and I certainly haven't had any made known to me as a reason for refusal anyway

IX. There are no other reasons given which have been endorsed by the Secretary of State.

(j) In consideration of the points raised in my appeal I ask that you now find in favour of my request

 

In conclusion I put it you that I am willing and able to continue with my previous employed status without compromising any business needs, but am also willing to take on the less onerous responsibility of negotiator if you do have sufficient grounds for not thinking that my position of coach is compromised.

I have no intention to take this matter further to ACAS or a Tribunal and would rather settle this matter so that we both benefit from my experience as both a coach and a negotiator should that be the position you find more acceptable.

[Grotesque]

This is a draft appeal.

I need some OK's for this as far as legislative matters are concerned. Any other amendments etc are more than welcome to be presented.

I refer to your letter of 27th March 2014 in respect of my request for you to consider my Statutory Right to apply for an agreement for flexible working.

 

I refer you to the Employment Act 2002, the governing legislation.

 

This Act gives me the right to request such an arrangement and that it must be properly considered by the employer. A reasonable adjustment to my working hours should be given due consideration within that legislation.

 

You will know that I am at present on maternity leave and that I am therefore a mother with a dependant child within the 26 weeks since birth. This fact underlines my right for the flexible working under the provisions for maternity reasons, and as such I am claiming within a protected period.

 

I gave you notice that I wished you to consider my working week and to accept that it could be reduced to 3 working days rather than the 5 days at present. This being for the necessary purpose of caring for my child. You acknowledged my statutory flexible work application but failed to address all of the submissions made by me.

 

I gave you an alternative to reducing my working days as a Team Leader by my taking on the lower rank of plain negotiator if such an arrangement was thought to be not in the interest of the company.

 

I now address each point of your response.

1. You have failed primarily to consider my request within the necessary time-scale laid out in the legislation. A failure to comply with 80.G.1 of the Employment Act is one which is a cause for complaint to the Employment Tribunal

(a) Following the interview arranged to discuss my request you had a period of 14 days in which to respond. Your letter of refusal was dated the 27th of March therefore being 10 days beyond the limit.

2. I now address the reasons for refusal.

(a) You state that my request has been refused as a result of my being required to work within optimum times to maximise cash collection and to close cases. I submit that the optimum times are exactly the times I am already contracted to work and I have not requested anything different. Since the courts, insurance companies and partners of the company work within normal working hours during the daytime your reason for refusal on this basis is unreasonable. You have not given any reason to explain how the normal daytime hours I am contracted to work and which are those same as I request on a part time basis are not the optimum business hours. I am at a loss as to how working during the daytime hours would result in my not being able to contact anyone you mention; from the courts to the partners.

I am not requesting working hours on an evening or night-time which could well be construed as not being the optimum hours.

(b) Your assertion that my working outside of the optimum times would result in insufficient work for other employees and would increase staffing costs and company profits. You have not explained, nor can you, how this assertion is arrived at when the hours I am asking for are the same as I have always worked and are the optimum times.

© You state that my request does not fit in with the service demands that you need to meet. I put it to you that this is entirely fictitious. The service demands are primarily contacting the people who we chase for payments, the courts and our clients which are necessarily during normal working daytime hours. You have failed to address why such an assertion is made. You have not explained how you have arrived at this opinion and why this was not discussed at our meeting where it may have been addressed at that point.

(d) You state that as a coach my role involves the training and coaching of employees on the team. This is accepted, however you fail to address why such a position and responsibility cannot be undertaken in 3 days rather than 5 days. My employment as coach to a team has been exemplary and I have no reason to suspect that I would not be able to continue to achieve the leadership results I managed prior to my maternity leave. You have not explained why this would not be the case and why I could not coach a team just as effectively in 3 days when I devote my full working day to ongoing training and leadership.

(e) The above reason for refusal is prejudicial as the same request for exactly the same working arrangement by another coach was accepted by you. You will be aware that in the case of an Employment Tribunal any comparator of cases similar to my own will be applied in support of my claim.

(f) Since I was also considering the wider needs of the company after an initial suspicion that my case would be unfavourably considered I made known in my request that I would be willing to forego my current position of coach and to reduce my status to that of negotiator, my previous status. This is a position which is more open to part time work since there are always vacancies for this work. By accepting this possibility there would be no performance or impact on the company’s working objectives. I offered you this compromise and you failed to address this as part of your considerations, or at least to address it in your refusal. I would suggest that an acceptance of my move to that of negotiator would be within the parameters of you “making a reasonable adjustment” to my working hours and employment status and would be looked upon favourably in any Tribunal claim.

(g) The right to request flexible working puts on you, the employer, a duty to make any necessary adjustments within the requirements of the Employment Act 2002.

(h) The reasons for rejection need to be within set parameters within that Act and your refusal does not meet the necessary criteria.

S.80G.1 of the Act gives the reasons for rejection as follows.

I. The burden of additional costs

II. detrimental effect on ability to meet customer demand

III. inability to re-organise work among existing staff,

IV. inability to recruit additional staff,

V. detrimental impact on quality,

VI. detrimental impact on performance,

VII. insufficiency of work during the periods the employee proposes to work

VIII. planned structural changes, and

IX. such other grounds as the Secretary of State may specify by regulations.

(i) How these requirements are met by you

I. You have failed to show why there would be any additional costs:

II. you have failed to show where there may be any impact on customer demand;

III. you have failed to show how you cannot reorganise work especially since this has already been accommodated with others in a similar situation,

IV. you have failed to address the recruitment issue and I put it you that it isn't something worthy of consideration anyway,

V. You have failed to show why there would be a detrimental impact on quality

VI. You have failed to show why there would be a detrimental impact on performance

VII. You have shown that my usual working hours are the optimum hours so you fail in giving a rational reason as to why there would be iunsufficnet work in the period I am already contracted to work

VIII. As far as I am aware there are no structural changes and I certainly haven't had any made known to me as a reason for refusal anyway

IX. There are no other reasons given which have been endorsed by the Secretary of State.

(j) In consideration of the points raised in my appeal I ask that you now find in favour of my request

 

In conclusion I put it you that I am willing and able to continue with my previous employed status without compromising any business needs, but am also willing to take on the less onerous responsibility of negotiator if you do have sufficient grounds for not thinking that my position of coach is compromised.

I have no intention to take this matter further to ACAS or a Tribunal and would rather settle this matter so that we both benefit from my experience as both a coach and a negotiator should that be the position you find more acceptable.

 

Remember to fit it onto a single page.

[Emmzzi]

can you answer my question please? I have a long rambling appeal, but am entirely unclear how it was stated the work could be covered. That is the job of the person applying for changed hours.

 

She's no rights at all here really except to apply so waving the names of laws and acts about is going to do nothing except annoy the people she needs onside. Let's start again.

 

Can you answer my question please?

[Lynnzer]

I'll speak with her and see exactly what she put to them. I know for certain that she told them she would be willing to drop down a grade to that of negotiator instead of coach so that any potential managerial deficiencies would be overcome. The company is always recruiting negotiators since the company is very difficult to work for though she did the job brilliantly and achieved early promotion to coach then to team manager.

 

They didn't even address that particular suggestion at all. However they are always recruiting for that position.

It's also a fact that others in her position of coach have had their request to do 3 day weeks accepted and the company has arranged job share to make sure the job requirements were met.

They told her she could possibly do the same but were unwilling to give her any names of people she could do it with telling her she would have to do it herself. Of course she can't. She's off work now and has no access to the people who may be able to do it.

In any case, job share would only be required for the position of coach, not the suggested negotiator position, ie the bottom off the barrel telephone "sales" operator.

[Emmzzi]

"What other people have" is not relevant, sorry.

 

The company has no obligation to find a job sharer.

 

The only question that counts is "how will the work be covered."

[Lynnzer]

"What other people have" is not relevant, sorry.

 

The company has no obligation to find a job sharer.

 

The only question that counts is "how will the work be covered."

So. let's try again eh.

point 1 is that she offered to do part time on a lower paygrade where there are always vacancies.

Every company, even those who don't have a continuous turnover of staff, have to cover for holidays, sick leave, maternity (especially in this sort of business of telesales) so there's always a few empty desks. There wouldn't have to be any adjustment in working practices to enable this.

This is an offer by her to take a lower paid job to make a suitable compromise and eliminate any potential managerial shortfall.

Surely there's a responsibility placed on them to consider this and if they refuse that offer to explain why it isn't suitable.

Non acknowledgement of that offer in their refusal letter surely is not acceptable and should have been suitably addressed

 

Now, onto legal aspects. What is the opinion of the forum of a mother still on maternity leave as far as it being a relevant period is.

Does Maternity cover this or not?

 

I am told that they gave her an indication that they would allow a job share but they wouldn't assist her in finding a suitable candidate. As she's on maternity leave it's not really possible for her to access the company staff records to find someone herself. There's no attempt to address this situation save for saying they would consider it. This was mentioned at her meeting in any case and has not been mentioned as a refusal point or given as something they would consider. As it stands they did say they would consider it but right now they have not agreed to that in their letter of refusal or mentioned it in any way. So a general acceptance at the meeting then total non consideration following it.

 

What I really want is help here.

I don't want to make a case where she puts herself against the wall and has to quit her job or go back under a cloud.

Any useful directions will be more than gratefully received.

Failure of any mention of it must surely be another failure when it was a part of the disccusion at the meeting..

[Emmzzi]

she has absolutely no right to have her hours changed. None at all. Just to have the request considered.

 

I am still unclear how the rest of HER JOB gets covered. So without that, there's really no pressure on the compny to accept.

[Lynnzer]

she has absolutely no right to have her hours changed. None at all. Just to have the request considered..

So the provision for job-share and reduced working hours means $hit all then. It's just a nice comfy thing to make people feel good eh?

And the right to have it considered? Has it been properly considered when they fail to address the matters put to them, ie the submission to reduce to a lower grade?

 

I am still unclear how the rest of HER JOB gets covered. So without that, there's really no pressure on the company to accept.

Given that her job is already covered, probably by sharing her responsibilities among other team leaders, then nothing would change there. All that would happen is that instead of her job being covered for 5 days, the need to cover would reduce to 2 days.

Any good?

[Emmzzi]

So the provision for job-share and reduced working hours means $hit all then. It's just a nice comfy thing to make people feel good eh?

And the right to have it considered? Has it been properly considered when they fail to address the matters put to them, ie the submission to reduce to a lower grade?

 

 

Given that her job is already covered, probably by sharing her responsibilities among other team leaders, then nothing would change there. All that would happen is that instead of her job being covered for 5 days, the need to cover would reduce to 2 days.

Any good?

 

I don't make the law, I'm just explaining the law, and deserve neither your anger nor swearing. If you wish a second opinion pay for a solicitor or go to E.T. everyone on this board volunteers their own time.

 

Have a look on the .gov website for a full explanation of the process and rights.

[Lynnzer]

Remember to fit it onto a single page.

 

Seriously?

Is that a necessity?

[Lynnzer]

I don't make the law, I'm just explaining the law, and deserve neither your anger nor swearing. If you wish a second opinion pay for a solicitor or go to E.T. everyone on this board volunteers their own time.

 

Have a look on the .gov website for a full explanation of the process and rights.

 

I'm neither angry or swearing at you. I appreciate all the input I can get on here.

I'm frustrated with my lack of knowledge on the subject and if this seems to you to be poking you in the eye then I'm not.

Pointing me to the website isn't all that useful since there's a minefield there. So much stuff to try and get into an ageing head and so many seemingly half useful bits of law.

There's the Equality Act too which may have some bearing on the subject.

 

Like I said I'm trying to build up in a deliberate manner point by point so that firstly I understand it myself and secondly it is legally correct

[smokejumper]

I think you hit the nail on the head when you said "it's worth sh#t all".

 

Some employers do ignore the law/legislation, their attitude can be, well what you going to do about it.

 

The judges will say to you that they are not there to punish anyone.

 

On a ratio of effort put in to result/compensation received, I think the ET is a waste of time and if you get representation, money.

 

I suppose the employer did consider it, but not how you wanted them to.

 

The argument about the lower paid post is almost like making up a job, I see what your saying, but if someone is needed then they would get someone that can do a full week. As it is, sickness and holiday absence is usually covered by the other staff doing more work.

 

It is frustrating when people don't see your point, but sadly thats how life is, we just shout, swear and kick something and then give up and move on to the next drama life has in store for us.

[smokejumper]

Emmzzi, knows her stuff and has a lot of experience, however I do see a lot of people getting upset with her direct, no no-nonsense advise.

 

I like her answers, she's not here to tell you what you want to hear, so she won't pretty it up to let you down slowly, paid help will.

 

You will have to read everything you can and find relevant points, only you can do that as your motivation will drive you or in the case of professional help, getting paid drives them .

[Grotesque]

Or: "So busy knocking on the door, that, ma fois, they do not notice it is already open."

[Lynnzer]

It's not that I've been told things I don't want to hear guys.

I don't mind hitting a brick wall as long as I know there's no diversion.

At present I'm seeking that diversion.

 

I have read as much as I can on just about everything but it's so confusing and as you guys possess (possibly) a better understanding of the issues I thought I may be guided to drafting a suitable appeal.

 

Now a couple of things have been mentioned that could potentially give some scope for her request to be accepted. The 1st of these is that another coach is going on maternity leave around the same time as she returns from hers. This coach already works on a job share basis so that leaves a slot for someone else to fill. There isn't anyone else who could accomodate this.

Another coach who returned to work also had the same needs and she was allowed to drop a grade to that of negotiator. Just as my son't partner is asking. There are ALWAYS job vacancies at negotiator level and there are a lot of part timers too.

 

You can see from the refusal points that they say they can't accomodate part time working however they already have part timers doing the job of coach too. SO what they say isn't truthful.

If you look at the way they have drawn up the refusal, the points are more or less those taken directly from the refusal points as laid out in the EA. No proper consideration has been given at all.

 

I ain't nagging. I ain't sore because I can't get the answers I want. I just want the right answers so I can progress from there to making an appeal that holds substance.

Seems all I have so far from the forum is a series of things that won't work rather than potentially useful appeal points. Maybe the above may give some room for manoeuvre?