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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 48190
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi My wife has worked for Everyone Everywhere for almost 9

Resolved Question:

Hi
My wife has worked for Everyone Everywhere for almost 9 years.
Intially on a 5 day contract then after the birth of our 1st child her hours were reduced to 4 days for child care reasons. In Sept 11 we had the birth of our second child and Kim was due to return to work on the 16th Feb 12.

We requested Flexible working hours 2 days but this was turned down. We then offered 3 full days including a weekend day. They counter offered with her original 4 days or work 3 days 11am to 4pm BUT BE AVAILABLE FOR 5 DAYS. This offer is impractical due to child care being inflexible. 4 days is too expense on the child care front.

Today was the final appeal meeting and her above request was turned down on the basis they need flexiblility in the days worked.

The business is a retail mobile phone business with many sister stores. It is open 7 days a week 9am to 5pm and they have many different shift hours.

I know they can turn down this request but asking someone to work 3 days but be availble for 5 in my limited opinion is sex discrimation on the basis of the child care issue. You cannot at the start of the week ask your childminder to change days.

Also pre maternity Kim's salary was often remarked upon by her line manager and area manager. As an employee that has worked for the company for almost 9 years her salary in retail terms is not bad and higher than her colleagues plus she has huge benefits.

This appears sex discrimination and contrustive dismissal?

Thank you
Submitted: 5 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 5 years ago.

Ben Jones :

Hello and thank you for your question, which I will be happy to assist you with. Please let me know the exact reasons for their refusal?

Customer:

Hi

Customer:

Hi Thanks for being so prompt.

Customer:

We have not had the official letter but the reason given in the meeting is that the "lack of flexibility" in the days-

Customer:

For example if someone is ill or holiday - Kim would change their days

Customer:

does this help?

Customer:

Are you there?

Ben Jones :

yes sorry just got called away . Let me just draft my answer

Ben Jones :

The right to request flexible working consists of the following three steps:



  • A formal request by the employee by following the set statutory procedure

  • An obligation on the employer to consider the request seriously

  • A limited number of grounds on which the employer can refuse the request


 


An employer can only reject a flexible working request 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 to providing a set ground for rejecting the request, 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 business ground.


 


Assuming they have given serious consideration to her request, have followed the proper procedure and can justify the refusal on one of the above grounds and show that is indeed the case, then it is unlikely she can claim discrimination or constructive dismissal.


 


If you believe that they have not used one of the set grounds for refusal or the facts they have used are incorrect, you can consider raising a formal grievance first to try and resolve this or by formally appealing the decision. If these do not help, you have the option of taking this to an employment tribunal, however you can only do this on the following grounds:



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

  • the reason for refusal was not one of the set reasons above

  • the rejection was based on incorrect facts


 


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


 


Whilst constructive dismissal is an option, consider carefully whether the above factors apply, especially as this is a very difficult claim to win.


 

Customer:

Sex discrimination?

Ben Jones :

Sex discrimination will be part of the first claim. Just because the hours proposed by the employer do not suit her as a new mother dopes not mean this is sex discrimination, especially if the employer has satisfied all of the considerations I mentioned above.

Customer:

Ok that is the detailed answer - What is your professional opinion?

Ben Jones :

it really depends on whether the reasons they have given for rejecting the request are genuine and justifiable in the circumstances

Customer:

The business has many stores and many part timers and this can't be the end after 9 years of service. I don't think the above points are affected. I do think her pension contributions and her hourly rate are the reasons. This is having a cost on the store. Her roles is being filled by a temp on min wage and her rate is £7.81 plus benefits and commission.

Ben Jones :

this is a question of fact. I do not have enough details of the employer's business needs or resources to say with certainty if their decision is right or not, all I can give you is the law that applies in this situation and what she can do about it. If she has evidence that her pay is the reason then she can certainly use that in any appeal, grievance or claim she makes but I have not seen evidence that this is the case, it is just speculation

Customer:

This is very depressing.

Customer:

The law appears to be so subjective - nebulus. We/ I think they are making it difficult for her to come back they advertise a family flexible working policy to their staff yet there is no flexibility. The decision in this case is not on a point of law but on a judges interpretation of the presented facts.

Ben Jones :

There will certainly be a subjective element in this case because it depends on the business needs, resources, etc - these will vary from one employer to another. Employees will have certain rights but that does not give them full rights to request whatever hours they want - there is still a business to be run and employers will have certain rights too.

Customer:

Ok

Customer:

But this is what scares me about law - nobody has the answer. Would anybody or any recommendation for somebody taking on the case on a no win no fee basis? At the moment the best option is to continue on maternity leave unpaid.

Customer:

I am frustrated but I am very grateful for your professionalism. I hate bullys and boys in suits and that's whats happened.

Ben Jones :

law is rarely straightforward. A lot of it is to do with interpretation, reasonableness, etc - the way it works is that the main principles are set in stone but how they are applied will depend on the particular situation. There is no escaping that. You may find a firm that could take this on but you have to do some looking around because there aren't many that do no win no fee.

Ben Jones :

or you can make the claim yourselves

Customer:

If we make the claim ourselfs what do you think would happen?

Customer:

also I do think offering 3 days instead of the 4 days as before is reasonable. It is one day less than before?

Ben Jones :

What will happen is difficult to predict. You would get some help from the tribunal but still have to show that you have a valid claim. Whilst at first sight the 3 days would seem reasonable it still depends on the needs/resources of the business - for you it may not make much of a difference, for the business it could be much different

Customer:

Last question It nebulus. they have staff that work one day a week and they have staff that work 4 hours and they have ORange and T mobile stores and there has been no attempt to transfer or try and offer some other solution.

Ben Jones :

they need to explore all avenues - they have a legal duty to seriously consider her request and that 'serious' consideration should involve looking at different options,such as the ones you mentioned

Customer:

ok thanks Ben. All the best.

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