Pregnancy & Working from Home

[samwardill]

My wife is 24 weeks pregnant with twins. She has asked to work from home for the last few weeks of her employment before going on pregnancy leave because a) she can do her role just as well from home as from the office and b) she is worried that the stress of her commute (1 hour each way in London on public transport) will bring on pre-term labour (a real risk with twins). Her line manager has declined her request. As a result she is likely to have to start her maternity leave earlier than she would have liked.

Does my wife have the right to have her request to work from home given due consideration?

Can my wife claim recompense for the fact that she was effectively forced to go on maternity leave earlier than she would like?

[teaboy2]

Re: Pregnancy & Working from Home

On what grounds was her request refused?

Note your wife has the right to appeal but i can go through that once i know what reason was given for the refusal as they must be specific (I.e. back up their reason with facts, figures etc. A no simply is not good enough!) otherwise its indirect sex discrimination.

[samwardill]

Re: Pregnancy & Working from Home

On what grounds was her request refused?

Note your wife has the right to appeal but i can go through that once i know what reason was given for the refusal as they must be specific (I.e. back up their reason with facts, figures etc. A no simply is not good enough!) otherwise its indirect sex discrimination.

I think no specific reason was given. Why would this be indirect sex discrimination?

[miliitant]

Re: Pregnancy & Working from Home

It has been successfully argued that, because women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can be indirect sex discrimination. The same principles could apply where women employees need flexible work because of other caring situations. In law, indirect discrimination occurs when:

• Your employer requires something of, or imposes a working practice on male and female employees, for example full-time working or shift working, which puts women at a particular disadvantage compared to men (e.g. because of they bear the main burden of caring responsibilities), and
• You suffer a disadvantage as a result of not being able to meet the requirement or practice. In flexible working cases, this will be the difficulty of combining the required work hours with your caring responsibilities. This does not mean the hours are impossible to work but it is advisable to show why you need the hours requested, for example, the affordability or availability of childcare from a particular nursery or family members, how much time you think your child should be in your care and the serious consequences of refusal in that you may have to leave your job or suffer stress and exhaustion if you continue.

And,

• the requirement or practice cannot be justified by your employer as genuinely necessary for the business. Assessing this means the tribunal will examine how badly you are disadvantaged by the requirement, so the evidence demonstrating this will be useful here too.

When deciding whether indirect sex discrimination has taken place Tribunals look at the individual circumstances of each case though some general principles have been developed by the courts in flexible working cases. These mean that the employer:

• must show s/he has examined thoroughly whether the change is feasible and what problems insisting on full-time work (for example) will cause you compared to how essential it is for the business’ operation. Inconvenience will not normally be a good reason, nor added costs, if this is the only reason for rejecting the change;

• has considered the alternative work pattern you suggested and possibly any others which might help you;

• must not have relied on generalisations for rejecting your proposal e.g. an assumption that flexible hours would not meet any need the business has for continuity or a blanket policy (e.g. no flexible hours allowed as this would set a precedent) but can show your particular job must be done as the employer requires.

SO JUST SAYING NO TO YOUR REQUEST IS NOT AN OPTION
THE EMPLOYER NEEDS TO STATE A BUSINESS REASON AS TO WHY IT IS UNABLE TO COMPLY WITH YOUR REQUEST FOR FLEXIBLE WORKING

I FEEL YOU NEED A PAPER TRAIL SO A FORMAL COMPLAINT OR GRIEVANCE MAYBE AN OPTION AS BEING PREGNANT YOU HAVE "PROTECTED CHARACTERISTICS"

ALSO

HAS RISK ASSESSMENTS BEEN SCHEDULED AS TO HER PREGNANCY BY THE EMPLOYER ON A REGULAR BASIS SINCE SHE INFORMED THE EMPLOYER OF HER PREGNANCY

THAT COMES UNDER THE MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS

HOW BIG IS THE EMPLOYER AND HOW MANY STAFF ROUGHLY

YOUR LINE MANAGER PROB HAS NOT A CLUE ON LEGISLATION AND THIS SINARIO IS NORMALLY DECIDED BY HR

[teaboy2]

Re: Pregnancy & Working from Home

As militant said - Hence why its indirect sex discrimination.

Right. The employer has failed in their legal obligations to a clear and percise reason as to why your partners request was refuse.

The reason they can give and provide support evidence to support their reason are as follow:

Taken from BusinesLink

Refusing a flexible working request outright

If you decide that you cannot accommodate any kind of flexible working for an employee, you must write to them:

• stating which of the listed business ground(s) apply as to why you cannot accept the request
• providing an explanation of why the business reasons apply in the circumstances
• setting out the appeal procedure

This written notice must be dated.
You can use form FW(C) for this purpose. Download form FW(C) to use when refusing an employee's flexible working request (DOC, 144K) - Opens in a new window.
The business grounds for rejecting a flexible working request

You can only reject a flexible working request on a limited number of set 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

Explaining your refusal of a flexible working request

In your written refusal of a flexible working request, you must explain why the business ground applies in the circumstances. If an employee understands why a business reason is relevant, they are more likely to accept the outcome and be satisfied that you have considered their application seriously - even if it isn't the outcome they wanted.
You do not have to go into a lot of detail, but you should include the key facts about why the business ground applies.
If you make a decision to reject an application based on incorrect facts, this would give the employee grounds to make a complaint to an employment tribunal.

Therefore your wife needs to make an appeal on the grounds that the refuse to her request were not satisfactory and failed to comply with the set grounds for refusal in law. Not only that but no reason was given other than a point blank refusal that was not given in accordance to correct legal form. Your wife is therefore legally entitled to appeal the decision of the employer to refuse her request flexible working hours. Make it clear in your written notice of appeal to the employer that their refusal is not satisfactory or compliant as to their legal duties regarding grounds for refusal, and that they may have committed an act of indirect sexual discrimination against your wife, whether unwillingly or not. They should hold an appeal hearing within 7 days of your appeal notice.

Include the following in your notice of appeal:

You can only reject a flexible working request on a limited number of set 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

Explaining your refusal of a flexible working request

In your written refusal of a flexible working request, you must explain why the business ground applies in the circumstances. If an employee understands why a business reason is relevant, they are more likely to accept the outcome and be satisfied that you have considered their application seriously - even if it isn't the outcome they wanted.
You do not have to go into a lot of detail, but you should include the key facts about why the business ground applies.
If you make a decision to reject an application based on incorrect facts, this would give the employee grounds to make a complaint to an employment tribunal.

That way the employer will **** a brick and think oh **** where for it now as they have already committed an act of indirect sexual descrimination with the point blank refusal originally. Thats another point you can raise at the appeal meeting.

On a side point - They may also be in breach of their contractual duty of care, given the health implication to both your wife and unborn twins. Just something to consider. Though one option is for a doctor to sign your wife off work.

[samwardill]

Re: Pregnancy & Working from Home

As militant said - Hence why its indirect sex discrimination.
On a side point - They may also be in breach of their contractual duty of care, given the health implication to both your wife and unborn twins. Just something to consider. Though one option is for a doctor to sign your wife off work.

Thanks both for your help. In fact just the request for written confirmation of the reason for denial of the request produced a more reasonable response. However it is still not yet agreed.

On the subject of being signed off sick, my wife's employer only allows 2 week sick pay on full pay in any year. Can this be enforced for pregnant women?

[teaboy2]

Re: Pregnancy & Working from Home

Thanks both for your help. In fact just the request for written confirmation of the reason for denial of the request produced a more reasonable response. However it is still not yet agreed.

On the subject of being signed off sick, my wife's employer only allows 2 week sick pay on full pay in any year. Can this be enforced for pregnant women?

A preganant woman on sick before, during, after or maternity leave, is entitled to the same rate of company sick pay under a company/contractual sick pay scheme, as well as when on satutory sick pay as all other employers. They must not be treated differently or more favorable in terms of level and duration of sick pay whether part of a company/contractual sick pay scheme or on statutory sick pay, than that of other employees. If an employer does so, then he/she is committing sexual discrimination.

In otherwords the rules of the company/contractual sick pay policy applies equally to her as it does to other employees, their is no allowance for an employer to reduce the maximum or minimum period in which the scheme pays sick pay, nor is their an allowance for the employer to reduce the rate of sick pay during its duration.

So question is what does her employement contract say about sick pay and company sick pay?

Also can you enlighten us as to the reponse your wife got from her employer reference working from home?

Just to add, once company/contractual sick pay has been used up your automatically entitled to statutory sick pay

[samwardill]

Re: Pregnancy & Working from Home

Also can you enlighten us as to the reponse your wife got from her employer reference working from home?

My wife got a Negative response to her request to work from home for the last 4 weeks prior to maternity. The reasons given did not justify the refusal (in my opinion) so I think she will lodge a formal grievance tomorrow. They also reneged on a flexible working agreement that was agreed informally at interview (but never documented) when she joined the company in a previous role.

[samwardill]

Re: Pregnancy & Working from Home

Can she request that I accompany her at the appeal hearing?

[miliitant]

Re: Pregnancy & Working from Home

she can request but i doubt they would oblige

the only people allowed to accompany the employee at a disciplinary or grievance meeting etc will be a work collegue or a trade union rep

[samwardill]

Re: Pregnancy & Working from Home

They should hold an appeal hearing within 7 days of your appeal notice.

My wife has lodged a grievance. They have said that this will take weeks (by which time she will have to start her maternity leave). Where does the 7 days you quote come from?

[miliitant]

Re: Pregnancy & Working from Home

lets not worry about appeals etc

you have only just put in an official grievance, now thats a paper trail

the employer has to deal with that first, as a rule a stage 1 grievance gets concluded within a week (good practice)

i dont know if this has been asked but does your company have a trade union presence, that way a grievance can be done over three stages and strict time tables

[teaboy2]

Re: Pregnancy & Working from Home

My wife has lodged a grievance. They have said that this will take weeks (by which time she will have to start her maternity leave). Where does the 7 days you quote come from?

The 7 days to hold an appeal meeting is when you appeal their original refusal to allow flexible working hours for your wife. So they should not be taking weeks as they must hold the meeting within a reasonable time period.