Returning to work after maternity or paternity leave

When children come into the equation, there can be a need to reevaluate the balance of work and life. For many people this will be looking at changing working hours, flexible or part time working. Whilst there is no right to be allowed to work flexibly, there is the right (since 2003) to request flexible working conditions. Conditions that can be requested as flexible working include asking for different annual working hours, beginning a job share, working from home or somewhere other than an employee was previously working, making use of flexitime or different working hours, such as finishing early.

The right to flexible working

The right to request flexible working arises when:

– Someone has responsibility for a child.

– The child that person cares for is less than 17 years old or less than 18, if entitled to Disability Living Allowance or (Since 2007) that person is someone caring for their, relative, spouse or civil partner, a person living at the same address who is over 18.

– That person has been employed by the employer for 26 weeks or more.

– That person is the mother, father, adopted parent, foster father or mother, or guardian of that child, or is married (or in a civil partnership) with someone in that position.

or

– That person expects to have responsibility for the child.

The procedure to request flexible working

A request for flexible working should be made following a correct procedure. It can be made within the time period between the child’s birth up until the day before the child’s 17th birthday (or 18th if disabled) and should be made in writing, including the proposed changes to the working hours and the effect this will have on the employer. Only one request can be made per year and an employer should state whether or not there has been a previous request of the same nature (and if there was, when that request was made). A staff handbook will usually have more details on how to request flexible working and any procedures in it will need to be followed.

A basic procedure that should be followed is:

1. The employee makes the request. It is important that an employee makes a formal request even where he or she does not feel it is likely to be accepted. The way the request is dealt with could provide evidence for any future Tribunal claims, including an indirect sex discrimination claim. A request should be made in plenty of time as, if it is not processed before an employee returns to work, that employee will have to return to work on a full time basis. Any claim made to a Tribunal should be made within three months less one day from the date of the employer’s refusal to allow a request, the appeal date (if there is one) or the point at which an employee is dismissed or resigns.

2. Within 28 days the employer should respond to the request by holding a meeting to discuss the request. The employee can be accompanied to the meeting.

3. Within 14 days of that meeting, the employer should respond to the request for flexible working.

4. If the request is refused then proper reasons should be given. Reasons for refusing a flexible working request could include the cost of allowing the flexible working, anegative effect on quality and performance, or the employer is unable to recruit extra staff.

5. If the request is refused, the employee should have 14 days in which to appeal

6. If the request is accepted then this should be done in writing within 14 days of the meeting. The acceptance should include agreeing the specific details of the flexible working and the start date. After the flexible working has begun this is the start of new terms and conditions for the employee and the previous terms cannot be returned to unless both parties agree.

Challenging a refusal

The right to challenge a refusal only arises if the decision is based on erroneous facts, or the proper procedure has not been followed. It is challenged by the employee making a claim to an Employment Tribunal within three months less one day of the refusal or appeal, and the Tribunal can make an employer reconsider the decision. There is also the option of compensation being awarded to the employee. This compensation has a limit of £3,200, which is a maximum of £430 a week up to a limit of eight weeks.

There is also the possibility of challenging a refusal on the basis of indirect sex discrimination. It is generally accepted that women bear more childcare responsibilities in society than men and a Tribunal will accept that more women than men are likely to have the responsibility. Indirect sex discrimination would result from a provision, criterion or practice that has been applied to both men and women, like one that insists that all employees must work full time, for example. It is a policy that a) disadvantages a woman personally, b) also disadvantages women as a group when compared to men, and c) is not a proportionate means of achieving a legitimate aim.

A claim for sex discrimination has an advantage over challenging a refusal in any other way because the Tribunal will look at the reasons for the decision, not just whether the process has not been followed or the facts are wrong. The potential compensation for sex discrimination is limited only by the amount of actual loss – so, for example, where the refusal resulted in an employee being forced to resign the employee may be able to claim for loss of earnings resulting from this.