Equalities Act and Employment Act.

[Lynnzer]

I'm trying to get some useful info to build a case for my son's partner. Call her Nicola for now.
Situation.
She went on maternity leave in October. She works as a coach to a team in a financial institution in the private sector. She is to return to work in September
She knows that once her maternity leave ends she can't do a full working week so has designs on doing a 3 day week rather than the 5 she does now (until maternity leave obviously)

She applied for part time working for her normal working hours of 9 to 5.30 but for 3 days. Any 3 will do but preferably one which includes a Friday.
She offered to reduce a grade to negotiator if doing part time work wasn't allowable.

Her working hours are those which are the optimum hours for contacting her clients, the people on her her debtor list and the courts.

Other coaches are already doing job share. One of them is going on maternity leave herself (call her Suzy) around the time Nicola goes back to work.
Another coach is about to return to work from maternity leave and has been allowed to drop down to negotiator as Nicola has suggested would be acceptable to herself if part time coach work wasn't possible.

The company has a large contingent of part time workers in the negotiator level as well as occasional part time coaches.

At her meeting she was told that the company would consider job share but they wouldn't advise her of anyone she could share with. She would have to find someone herself.

She has been refused.
Reasons for refusal are as follows and as stated exactly in the refusal letter:
You will be aware that our business relies upon a work force that can operate at times that enable us to process claims and collect cash when at the optimum times to maximise cash collection and case closures. Courts, insurance companies and partners operate at certain times and we try to match this to use our workforce effectively. \failure to deploy our workforce at the optimum times can lead to reduced cash collection and reduced case closure which in turn can affect our overall profitability.
I note; The optimum working hours are those between 9 to 5.30 as already worked on her contract and which will still be the same in a job share capacity or reduction in grade to negotiator. They will be hard pressed to deny this.

If employees attend work outside of the optimum times this results in insufficient work for our employees at that time and also increases staffing costs which affects the profitability of the company.
There's no logic to this statement. Nicola hasn't asked to work outside the optimum hours. I think they're trying to make a case based on the reasons for rejection for a request for flexible working hours straight from the examples given in the Employment Act.

It is with regret that your request cannot be supported because the times of work you have requested do not fit in with the service demands that we need to meet. Therefore your request would have a detrimental impact on our ability to meet service demands, could potentially increase staffing costs and have an impact on business performance.
Once again the logic of this is dubious to say the least. The service demands are based on the optimum working times.

You are employed as a coach and your role involves the training and coaching of employees on the team to maximise performance of the team. The team coach is an important position to help promote good performance of the team. Your request to work 3 days cannot be supported, we would require you to work 5 days a week to ensure we can maximise the performance of the team.
Your contractual arrangements will continue to apply.

Now, other coaches are doing a job share for maternal reasons already, as already explained. This must blow their reasoning out of the water surely.
There's been no mentioin at all of job share potential even though they said they'd consider it at the meeting. Furthermore there's no mention of allowing her to drop a grade to negotiator to accommodate her working days.
So, reasons for appeal needed to be properly made.
Does the Equalities Act cover a return to work from maternity leave. I can see it covers maternity under a protected characteristic but is there anything useful in this scenario..
Direct use of the Employment Act would be useful but how????

The rejection of the request was made 10 days after the allowed time. Any use to her?

She called ACAS and had a chat with them about the situation and they said that the company were being obstructive in not assisting her to finsd a job share partner. Any use to her as way of appeal?
I have a draft appeal made out but I really need to know what thoughts emanate from this worthy forum first before I present it for your approval or otherwise.

[Tools]

Re: Equalities Act and Employment Act.

Advice leaflet - The right to apply for flexible working, A short guide for employers, working parents and carers [98kb]

If you have not already discussed this leaflet with ACAS then have a read.

The employer seems to be giving conflicting reasons for refusal regarding optimum working times, "Nicola" does have the option of appeal.

Was the request in writing as prescribed in the leaflet above?

Did they inform her of her right to be accompanied during discussions?

You say they did not give their decision in a timely manner, check that is correct, again in the leaflet above.

If they have breached these requirements then she stands a good chance of ACAS acting as intermediary for her. You also say that "Suzy" has been allowed a jobshare role and her current role is the same as "Nicolas"? If they allow one member of staff to do this then they have to apply the same principles fairly and equally to all staff, to not do so would be discriminatory.

[Lynnzer]

Re: Equalities Act and Employment Act.

Advice leaflet - The right to apply for flexible working, A short guide for employers, working parents and carers [98kb]

If you have not already discussed this leaflet with ACAS then have a read.

The employer seems to be giving conflicting reasons for refusal regarding optimum working times, "Nicola" does have the option of appeal.

Was the request in writing as prescribed in the leaflet above?

Did they inform her of her right to be accompanied during discussions?

You say they did not give their decision in a timely manner, check that is correct, again in the leaflet above.

If they have breached these requirements then she stands a good chance of ACAS acting as intermediary for her. You also say that "Suzy" has been allowed a jobshare role and her current role is the same as "Nicolas"? If they allow one member of staff to do this then they have to apply the same principles fairly and equally to all staff, to not do so would be discriminatory.

Thanks Tools. I've seen the ACAS booklet already. There's so much stuff all over the place about what an employer could do but little to pin it all down. A right to request doesn't mean the employer has to do anything from the looks of it. Just to consider it.

So, discriminatory action is apparent? That's a definite point of appeal but is it sufficient for them to back down. They may say they can't extend the same consideration ad infinitum otherwise it may well dilute the effectiveness of the companies working practice. Or not?

Nicola surely does know about an appeal and that's why I'm on the case. I want it set in stone. I need absolute killer points which would make it very difficult for them to knock back again without a very good chance of losing at a Tribunal.

Didn't know that ACAS could represent her at the appeal hearing. She'll need to speak with them on that one. They have already said that they answered the request out of time and that they are being obstructive.

I'm led to believe that any variation of working hours applies to her current contracted position, ie coach, and that reducing her grade isn't an option they have to agree to,. However since they have already extended that to another coach they appear to have set a precedent and their non acceptance in this case is discriminatory.

Apart from that, I still need an understanding of the implications of the Equalities Act in relation to Maternal rights in a protected period.

[cupidstunt]

Re: Equalities Act and Employment Act.

What acas says to you don't mean anything.

Acas will not represent you, they might act as go between and help that way, but if employer is standing by their decision it's not a lot of good.

Why not have a read through the equalities act for maternal rights then you will have a better understanding.


http://www.legislation.gov.uk/ukpga/2010/15/contents

[Lynnzer]

Re: Equalities Act and Employment Act.

What acas says to you don't mean anything.

Acas will not represent you, they might act as go between and help that way, but if employer is standing by their decision it's not a lot of good.

Why not have a read through the equalities act for maternal rights then you will have a better understanding.


http://www.legislation.gov.uk/ukpga/2010/15/contents

I've been through that. This is where I need held. Maternal rights and protected period isn't fully explained.
I don;'t know how long the period of that maternal right exists and whether it extends to the application of a comparator for other staff who have already had favourable acceptance of job-share and part time work.
Think I worked it out. It seems as if the request was made during her statutory maternity leave regardless of when she intends to return to work, it'[s treated as if it's made in the Protected Period. Or not?

That specific point would be useful if the maternal right covers that where it's been applied already.
Of course discrimination is also something mentioned but I'm not sure quite how that will stand since she isn't of any different persuasion, sexual, religious, race or otherwise to those already granted part time working hours.

If she was black and all the others were white there may be an argument, but as she's also white it seems not to apply, and the same goes for all the other discriminatory descriptions.

There is an obvious untruth in the refusal based on working optimum hours, et al, as all the other coaches have had similar requests allowed when asked for in the same circumstances therefore belying the basis of their rejection. In fact any tribunal would find that the optimum hours were exactly those applied for anyway since that is the normal shift pattern.
But does this give her grounds, on a legally sound basis, for following through on this.

I have also stumbled across The Part-time Workers (Prevention of Less Favourable Treatment)Regulations 2000 which may be of some assistance but as she is a full-time worker at present I'm struggling to reconcile that bit of legislation.I have 3 days left to get an appeal built and need as much info on the outstanding issues highlighted above.
I think I sussed that it doesn't apply to her being full time even if she wants to do part time. Or not?
Was just about to step into the shower and another thought has come to mind on the protected period for maternity,.
Since she made her request within the more obvious protected period of maternity leave, then any unfavourable comparator would be applied for others having already had a positive outcome to an exact same request?

My suppositions had been based on her time following her maternity leave which may take her out of the protected period but as she is still on leave then this has to be in the protected period, has it not? Think I got it covered in point 1.

And something else I found is that a mother may have up to 13 weeks unpaid leave per annum for maternal reasons. Is there any right of an employer to refuse to allow this period of 13 (wks)x5(normal working week) = 45 days to be spread so that a single day is taken per week?

Statutory holidays would cover the remainder I guess. Or as near as dammit.
Think I got that too. Can be taken in a maximum of 4 blocks so that makes a day a week a non starter.

Now, another thing in the edited post. If she does go back to work as a negotiator I believe I read somewhere that she is still entitled to the pay scale prior to her taking the position? Or not?