Do I have the right to work flexibly after returning from maternity leave?

Your employer does not have to agree to let you work flexibly- it is only a right to request it. Your employer must, however, deal with the request in a correct way. Your employer should:

  • hold a meeting within 28 days of receiving the request;
  • notify you of their decision after considering it carefully. The request should have been dealt with within 3 months unless agreed with you in writing;
  • give you one of the prescribed business reasons if the request is rejected; and
  • offer the right to appeal if the request is rejected (this is not compulsory but is recommended as good practice).

You should note that any claim in relation to a request for flexible working should be brought within 3 months less one day of your employer notifying you of their decision.

In terms of the decision itself, please find below the prescribed business reasons that employers can use to reject a request, below:

  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to reorganise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during the periods the employee proposes to work.
  • Planned structural changes.

If the employer considers that one of the grounds applies, then the test is satisfied. The test does not, on the face of it, import any question of reasonableness into this judgment. Therefore, it would appear that, assuming one of the eight reasons is given, an employee could only challenge the employer’s decision if the employer’s view is based on incorrect facts.

There is no longer any statutory requirement to include a “sufficient explanation” as to why the particular ground applies and the Acas Code is silent on providing reasons for rejecting a request. However, the Acas Guide suggests that the employer’s consideration of requests should be objective. Further, employers should consider whether an explanation would be both beneficial to the employee and support its decision, particularly in the event that the employee wishes to appeal (which the Acas Code suggests they should be permitted to do) or if the employee challenges the employer’s decision by bringing tribunal proceedings, for example, for sex discrimination.

A claim under the statutory scheme may only be brought on certain grounds, as follows:

  • The employer failed to deal with the application in a reasonable manner.
  • The employer failed to notify of the decision on the application within the decision period.
  • The employer rejected the application for a reason other than one of the statutory grounds.
  • The employer’s decision to reject the application was based on incorrect facts.
  • The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.

In addition to the above, bringing a claim can often be difficult to win due to the limitations on tribunals; they can only scrutinise employers’ decisions to a narrow extent (they cannot, for example, question the commercial rationale or business reasons behind an employer’s decision to refuse a request). Neither can a tribunal substitute its own decision as to whether the request should or should not have been granted and can only make low awards of compensation.

Essentially, the tribunal’s role is restricted to:

  • Reviewing the procedure followed by the employer.
  • Considering whether the request was taken seriously.
  • Considering whether the decision was based on correct facts.
  • Considering whether the reason given falls within the permitted grounds stated in section 80G of ERA 1996.

One argument you could have is that your request was not taken seriously. So, for example, by arguably not considering alternative ways of meeting your objectives and/or taking a negative approach to your request (focusing on why your request could not work rather than how the difficulties could be overcome).

Furthermore, it is important to consider the inter-relationship between flexible working requests and other forms of statutory protection, in particular, discrimination. The circumstances in this case, for example, could amount to sex discrimination. Again, a claim for discrimination must be brought within 3 months less one day of the discriminatory act which, arguably, could be the date on which your employer communicated their decision.

A sex discrimination claim in this scenario would likely hinge on the assumption that women have the greater burden of childcare, and this leads to a further assumption: that a policy requiring that a job be performed on a full-time basis would have a disproportionate impact on women. It does appear that tribunals will often be minded to accept that a woman who is required to work full time has been put at a disadvantage compared to her male peers. Even then, however, an employer may be able to show that the full-time working requirement is objectively justified on the facts.

Should you wish to stay with the company, you may want to go through the flexible working appeal process, if this was offered. Within the Appeal, you may want to concentrate on making a case for why the business would not struggle without you working your normal shifts as well as perhaps requesting a trial to test out how your requests would work.

Should there still be issues with the handling of your request (or should the appeal not be favourable to you) you may want to raise a grievance once the process has completed.

Click here to go to the maternity page

Click here to go to the flexible working page

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