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Flexible Working Requests On Return From Maternity Leave

Flexible working requests are often misunderstood.  The legal right which presently exists is that employees have a right to request flexible working; it is not a right to work flexibly.  Recent case law has confirmed there is no obligation on employers to accept an employee’s request to work flexibly when they return from maternity leave.  As long as employers deal with such requests reasonably and have genuine business reasons for rejecting the request, the employment tribunal will not find fault with the decision. Here we take a look at two such recent cases.

In Smith v Gleacher Shacklock LLP, Ms Smith requested to reduce her hours on return from maternity leave by working in the office three days per week, working from home on a Thursday and having Friday as a day off.  The employer rejected the request.  As an executive secretary for the small company, it cited that the working arrangements would impact upon its ability to look after clients, her role was unpredictable and it would place a disproportionate amount of pressure on a small team.  As an alternative, the employer suggested Ms Smith could return on a part time basis initially before increasing her hours to full time and that she would be permitted to leave work early to collect her child from nursery.

As an agreement could not be reached, Ms Smith pursued claims of sex discrimination and breaches of the flexible working regulations.  She also later resigned from her position.  Her claim was unsuccessful.  Whilst the employment tribunal acknowledged that the requirement to require a role be full time was potentially discriminatory, it stated that due to the size of the employer and the nature of Ms Smith’s role, the employer’s rejection of the request was justified and proportionate.

In the case of Whiteman v CPS Interiors Ltd and others, Ms Whiteman also submitted a flexible working request to reduce her working hours when she returned from maternity leave.  Whilst the employer in this case accepted the request for a reduction in hours, it rejected Ms Whiteman’s request to do the majority of her work in the evenings after 6pm and also to work from home.  The employer rejected this part of the request because the type of work Ms Whiteman undertook was collaborative and often required a number of colleagues being in the same room working on a project together.  It also reasoned that some of the work was often undertaken at short notice which would be difficult if Ms Whiteman wasn’t in the office during normal working hours.

Ms Whiteman resigned from her employment as a result of the decision and pursued claims of constructive dismissal, sex discrimination and breaches of the flexible working legislation.  Her claims were ultimately successful as the employment tribunal found that the employer had handled the request in a reasonable manner, had legitimate business reasons for rejecting the request and their approach to the request had not been discriminatory.

So, for employers, remember the following when handling flexible working requests:

1. Ensure all requests are considered and do not discourage employees from making request;

2. Handle requests in a reasonable manner. Do not simply say no, have a meeting to discuss the request with the employee and how they feel it will impact upon them, their team and the business generally;

3. If you cannot accommodate requests, ensure the reason for rejecting the request is for one for more of the following business reasons as stipulated by the Employment Rights Act 1996:

a. The burden of additional costs;

b. Detrimental effect on ability to meet customer demand;

c. inability to reorganise work among existing staff;

d. inability to recruit additional staff;

e. detrimental impact on quality;

f. detrimental impact on performance;

g. insufficiency of work during the periods the employee proposes to work; or

h. planned structural changes;

4. If rejecting a request is necessary, consider and put forward any alternative suggestions you have.

If you need any help and advice in relation to the above, please do not hesitate to contact me or the team on 01133 50 40 30 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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