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When Flexible Working Requests are declined

It is common for women returning from maternity leave need to request a flexible working arrangement so that they can accommodate their child care commitments whilst continuing to work.

Jasmine Johal (pictured), a solicitor at employment law firm Russell Jones & Walker, explains what happens if your request to work flexibly is turned down.

In the last article, we outlined the process which applies when these requests are agreed. Unfortunately, sometimes the requests are refused. What can be done in these situations to challenge employers who refuse flexible working?

It is important for mothers to know that the Employment Rights Act (1996) does not allow for an automatic right to flexible working. Rather, an employee only has the right to make an application to request flexible working, and this means an employer may decline the request.

However, you employer must be justified in refusing the request and can only do so on the following grounds:

• the burden of additional costs
• detrimental effect on the ability to meet customer demand
• inability to re-organise work amongst 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 your flexible working application is refused by your employer you are entitled to appeal your employer's decision. Ideally your appeal should address the reasons given by your employer for the refusal and consider how the problems cited by your employer could be overcome.

Your employer must invite you to a meeting to discuss your appeal within 14 days and then provide you with his or her decision within 14 days of the appeal meeting.

In some circumstances, if an employer refuses to accommodate a flexible working request the refusal may be unlawful as it may amount to indirect sex discrimination. The law recognises that most requests for flexible working are made by women with child care commitments.

Where employers refuse these requests or have policies or practices that require full time or non-flexible working, this will place female employees at a disadvantage. On the whole, women are much less likely than men to be able to commit to full time hours.

Most indirect sex discrimination claims of this nature turn on the question of whether the employer’s reason for refusing is justifiable, in other words whether there are genuine business reasons for turning it down.

Each case would need to be analysed on its own facts to see whether the refusal is likely to be justifiable or not. Therefore, if your request for flexible working has been refused you should seek legal advice as you may have a potential claim for indirect sex discrimination.

If you need to pursue a claim, action has to be taken within 3 months less one day of your request being turned down, so you should get advice promptly.

Discrimination on return to work

Sadly, some women find that upon their return to work from maternity leave their employer’s attitude towards them has changed. Some find that they are sidelined at work, overlooked for promotion or given a less desirable role then the role that they occupied before they went on maternity leave. Such treatment could rise to a claim for sex discrimination.

If you return to work after taking ordinary maternity leave (i.e. maternity leave of 26 weeks or less), the Employment Rights Act 1996 states that you are entitled to return to the same job on the same terms and conditions that you enjoyed before you went on maternity leave.

If returning to work from additional maternity leave (i.e. more than 26 weeks) you are entitled to return to the same job that you carried out before maternity leave, unless it is not reasonable for her to do so.

If it is decided that you cannot return to the same job, you are entitled to a suitable alternative role. It should be of the same status as your original role and the terms and conditions of any new role should be no less favourable than the terms and conditions of the original role.

If you consider that you have been the victim of discrimination, either because of the role you have been given on your return, or because of harassment or poor treatment by colleagues or managers since your return from maternity leave then you should raise a formal written grievance with your employer.

You need to do so within 3 months less one day of the date of the last act of discrimination about which you complain. It is very important to raise a grievance and to do so within the correct time scale as unless this is done you will not be able to complain to the Employment Tribunal about your treatment.

Once you have raised a grievance your employer should arrange a meeting to discuss it.. Following this meeting your employer should give you their written decision and allow you an opportunity to appeal if you are not happy with the outcome..

It is important that you do lodge an appeal if you are considering bringing a claim at the Employment Tribunal. If you have brought a formal grievance but this has not resolved matters, the time limit for bringing an Employment Tribunal claims is 6 months less one day of the date of the last act of discrimination about which you complain.

Legal Advice

Possible claims in these circumstances are complex and include direct sex discrimination, indirect sex discrimination, victimisation and harassment on the grounds of sex or pregnancy or maternity related discrimination. It is advisable for individuals contemplating these kinds of claims to seek specialist legal advice from a qualified solicitor.

If you are concerned that you are experiencing discrimination at work, EqualityXpress is a free and confidential online service that may assist you. Visit www.rjw.co.uk and click on the EqualityXpress link, fill in a few simple questions and a qualified solicitor will contact you to give you their legal opinion.

Jasmine Johal is a solicitor in the award-winning Employment law team at Russell Jones & Walker.

www.rjw.co.uk

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Diana Wolfin, author of 'Back to Work - A Guide for Women Returners' on when to tell your employer about your pregnancy...

What I want to talk to you about this month is pregnancy and thoughts on sharing it with your boss. Our newspapers have been full of stories about a high profile newsreader who finds herself pregnant shortly after starting a new job.

None of us knows what was said between her and the TV company so commenting would not be appropriate.

However, the question I am most commonly asked is how or when to tell an employer that one is pregnant, accompanied by great concern that the job will then disappear into thin air.

Women are more protected by the law now than they used to be, but other reasons for not getting a job may materialise and it could be difficult to prove that you have been discriminated against because you are pregnant.

When you are find you are pregnant, you have an opportunity to demonstrate your integrity. If you own up to being pregnant at an earlier stage than you need, your employer can see that you are being honest at a time when it would be easy not to say anything; hopefully that honesty will be recognised and appreciated.

It is a hard choice to make and many women would prefer to wait until they are sure that all is well with the pregnancy (usually around 12 weeks) or when it becomes obvious – that varies greatly.

This is clearly something which worries many women – we need to remind ourselves that babies don’t always come when you plan them, that men cannot have them (yet!) and that we are providing the future generation (and taxpayers) by becoming mothers.

Employers sympathetic to all these viewpoints are worth finding. The mother@work awards will help to locate them!

Diana Wolfin – Changing Direction – 020 8868 7818
Email: dianawolfin@
changingdirection.com
Web: www.changing
direction.com