Q: A full-time employee on maternity leave has requested to return part-time. She’s expected to return in three months. Any tips on how to handle the situation and what are our risks if we refuse?
A: Catherine Greig, Senior Associate at MacRoberts LLP answers…
As with most employee issues, the key is communication and consistency. I would normally recommend taking a more formal approach. There are two main benefits in following the formal statutory procedure for dealing with requests for flexible working. The first is that it is easier to show that you are treating all such requests consistently. The second is that employees are limited to making only one request in any 12 month period.
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 (see below).
The statutory scheme is set out in the Flexible Working Regulations 2014 and the Employment Rights Act sections 80F – I. It is supported by an ACAS Code (which tribunals must take account of) and by an ACAS Guide.
First steps
Check that the employee’s request contains all the information necessary to amount to a formal request. Once you have 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 a longer period).
Communication is key
Meet with the employee as soon as possible. Identify exactly what the employee’s 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. 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.
What kind of changes?
There is a lot of flexibility. 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 (not necessarily involving a reduction) 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 helpful 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 of allowing a request
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.
A change to an earlier start time or later finish time – working outside the traditional 9-5 -might be attractive to your customers.
Flexible working practices will attract a wider range of candidates and a wider talent pool.
It makes your business look modern thinking and progressive.
You may save some overheads if employees are working remotely.
Giving employees trust, responsibility and a better work life balance can boost motivation and productivity.
