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What To Do When An Employee On Maternity Leave Wants To Go Part-Time?

A full-time employee on maternity leave has requested to return part-time. How do you handle the situation and what are the risks if you refuse?

Remember that all eligible employees can make a flexible working request. The right is not limited only to parents and carers. However, requests from employees on maternity leave will need to be treated carefully because of the risk of a sex discrimination claim.

The statutory scheme is set out in the Flexible Working Regulations 2014 and the Employment Rights Act. It is supported by an ACAS Code and by an ACAS Guide.

First Steps

Check that the employee’s request contains all the information necessary to amount to a formal request and that the employee has worked for you continuously for 26 weeks at the date on which they make their application. Following this, your obligations are to:

  • Deal with the request in a reasonable manner; and
  • Notify the employee of your decision within three months of the date of the request (you can agree an extension).

Communication

You should ensure you meet with the employee as soon as possible and identify exactly what their aims are. Don’t feel that you have to make all the decisions in one meeting. It is good practice for both parties to listen to the other, take time to consider, and rearrange further dates. You can consider alternatives and not only the initial request.

Feel free to raise potential problem areas, such as annual leave, absences, periods of high customer demand or attendance at important meetings. Give the employee time to consider and meet again to discuss potential solutions.

The ACAS Code recommends that you allow the employee to be accompanied. It also recommends that you allow an appeal against your decision. The appeal should be dealt with within the original three month period, unless you agree an extension.

Changes

The employee can request a change to the number of hours they work, or a change to the times when they are required to work or a change to their place of work.

The change is normally permanent, but there is nothing to prevent the employee requesting a change on a temporary basis. If so, set out in writing the duration of the change and that the employee will revert back to normal arrangements at the end of the period.

Similarly, there is nothing to prevent you both agreeing to a trial period before reaching a final decision. You should agree an extension to the three month period in advance to allow the trial period to be reviewed.

Granting the Request

If agreement is reached, you then issue a new contract setting out the new terms. If reduced hours have been agreed, make sure in advance that the employee is fully aware of the impact of reduced salary, pension entitlement or redundancy benefits.

Refusing a Request

You can refuse for one or more of the following business reasons:

  • 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;
  • Insufficient work for the periods the employee proposes to work; or
  • Planned structural changes to your business.

The ACAS Guide sets out examples of situations where each of these reasons may apply.

Sex Discrimination

Remember that an employer’s requirement for a woman to work full time might amount to indirect sex discrimination. This requirement could disadvantage women as a group, because women in society still bear a greater part of childcare responsibilities than men and are more likely to want (or need) to work part time. Unless you can objectively justify the need for a full-time worker to do the job, the requirement might well be indirectly discriminatory against a woman with childcare responsibilities.

Advantages

Finally, when reaching your decision, remember to consider the positives as well as the negatives, such as:

  • You retain trained, experienced staff who might otherwise leave;
  • It demonstrates to employees that they are valued;
  • It can improve attendance and health – happy staff don’t take as many sick days;
  • Flexible working practices will attract a wider talent pool; and
  • Giving employees trust, responsibility and a better work life balance can boost motivation and productivity.

If you need help and advice regarding a flexible working request, please do not hesitate to contact me on 01133 50 40 30 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law 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.

Emma Roberts

Trainee Solicitor at Sce Solicitors Ltd
Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.
Emma Roberts

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Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

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