Legal rights on returning part time: ask the expert



Question

I have said informally that I would like to return to work three days per week in February after 9 months of maternity leave. My employers are volunteer trustees and my role is the most senior in the charity. I have suggested that I could do my role in three days with a two day per week assistant. They have said no and that they want to keep my cover on full time to do half my job and I can have the other half. So I will lose half my remit and share my seniority. Practically this will not work well in our small business, financially it isn’t viable and my cover would be impossible to work with. I wanted to know if legally I can stop them doing this. Do I have any right to keep the same job description of my full-time job if I want to return part time?


Answer by Ruth Renton

I’ve tried to answer your question based on the information given – there are some gaps, so I suggest you obtain formal advice based on the full facts.

The rules regarding return to work following maternity leave are set out in Regulation 18 of the Maternity and Parental Leave Regulations 1999, as amended. You are entitled to take up to 52 weeks of maternity leave following the birth of your baby. The maternity leave is split into two periods and different rules apply to return to work in either of those periods.

The first 26 weeks of maternity leave is known as Ordinary Maternity Leave. The second 26 weeks is known as Additional Maternity Leave.

You only have the right to return to the same job, working the same hours you were employed to do before you took maternity leave if you return to work within Ordinary Maternity Leave (within the first 26 weeks).

During Additional Maternity Leave (weeks 27-52 of your maternity leave), you can only return to the same job if that is still reasonably practicable. There is more flexibility available to the employer. If it is no longer the case, your employer must provide you with a suitable and appropriate alternative job role. “Suitable” and “appropriate” should be a job role as near as possible to what you were doing before you left for maternity leave. Your role, however, was full–time and you want to return to work under a different basis.

You want to change the terms of your job from a full-time to part-time basis. You are requesting a change to your employment contract. Based on my interpretation of your question, you want to do your job in three days instead of five, with an assistant covering your non-working days. You are therefore seeking to negotiate different terms to your hours of work, and this will impact your job description.

You have said that you have informally requested this and your proposal has been rejected. It is interesting that your employer proposes to keep your replacement on full time together with you on part-time hours. There are some questions which arise from that, the answers to which will impact upon any advice given:

1. Has your role expanded so much that it needs 1.5 people at the same level of responsibility (a full-time and part-time person) or will the full-time person take on additional responsibilities?

2. Is your maternity leave cover paid less than you and therefore cheaper?

3. Is your maternity leave cover more junior?

4. Is your maternity leave cover a man?

You are entitled to request flexible working under the statutory right to request flexible working. This right is available to employees with at least 26 weeks’ employment to enable them to care for a child up to the age of 17 (18 if disabled) or for a spouse or immediate relative. Under this statutory right your employer has a statutory duty to consider your request, must go through a specific process and can only reject the request for specific business reasons, outlined in writing. You might want to think about making this request although it is a right to make the request and have it considered not a right to work flexibly automatically. The application needs to be:

– be made well in advance of when you want it to take effect;

– be in writing (whether on paper or electronically);

– be dated

– state that the application is made under the statutory right to request a flexible working pattern;

– give details of the flexible working pattern you are applying for, including the date from which you want it to start;

– explain what effect you believe the new working pattern would have on your employer, and how any effects might be dealt with; and

– state whether you have made a previous application and, if so, when.

Your employer rejected your informal proposal and offered an alternative proposal. You have not set out your employer’s reasons for refusing your request. Any advice will be dependent upon the reasons given. The rejection of your proposal may, depending upon some of the answers to the above, and any other facts potentially be Direct Maternity Discrimination and/or Indirect Sex discrimination. Other claims may also be available but the key is whether the refusal to request to change your employment was unfair or discriminatory. Your employer may be able to justify an Indirect Sex Discrimination claim if it can show legitimate business reasons for the rejection – costs and a requirement for full-time availability, given the nature of the job may be factors.

You can either choose to file a statutory right to request flexible working and go down a more formal route or you can file a grievance against your ability to change your terms and conditions and return to your role on the part-time basis you outlined.

Again, if you make a statutory request for flexible working you will have in writing the reasons for the refusal.

One final point, an agreed change to working conditions under the statutory request for flexible working will be a permanent change to your terms and conditions of employment. You won’t be able to make another flexible working request for another 12 months.

If I can be of any further assistance, please contact me.

 

RuthRentonPrior to establishing Renton Associates Limited, Ruth Renton has many years experience of advising both employers and employees on all aspects of employment law. CIPD trained, Ruth is also an experienced employment law trainer and has written and facilitated employment law and skills training, both in-house to employers and through public seminars. Ruth is a passionate believer in training staff to manage and work within the law, helping to create a positive diverse workplace while providing a defence for employers. Approachable and articulate, Ruth has advised a broad range of clients ranging from charities and the public sector to small owner managed businesses and FTSE listed companies. Qualified since 1995, Ruth’s background is City based (Eversheds, Allen & Overy and Orchard Solicitors). As a non-practising solicitor, Ruth views herself as an employment lawyer with additional skills. Ruth is also proud to be a working mum of four kids – her biggest challenge! Meet our Panel of Experts


One comment

  1. Anonymous says:
    05/02/2015 at 12:00 am  

    Hi im a mobile supervisor and im contracted to do 40 hours a week however i may not do 40 a week as long as i do 80 hours a fortnightly i meet the contracted hours. I was on adoption leave 2 years ago, the week i was due back i was told the job i had, was going, so rather then been made redundant they said they will transfer me to another team.
    As i was going to put the child in nursery when i come back as i knew that the contract i was doing before i left was flexible i didnt think it would be a problem for me. However as soon as i was told about the changes i said straight away i would find this hard, as the new job meant more set hours ie my early start is 6 my late is 8 at night i dont have set hours as long as i do 80 a fortnightly. They said for me to try it. Which i have done but it has been very hard and coped up till now. But as im struggling I have asked if i could job share but i cant do that as i use a company vehicle the other person or myself would find it hard to pass it on. Ive asked for another person to do some of the areas and i would do theirs but as most of the areas are set times and the clients are used to that person it wouldnt work so was told i cant do that either. Im trying different ways but it feels what ever im trying i get knocked back. Can they do this??

    Editor: Did this all happen two years ago and when they made the change and said to try it, did they give an end date to the trial and say they would review it? If you agreed to the change without any stipulations over review then the only way you could change it would be through filing a formal request for flexible working, which you may have done. Your employer can turn down a request on any of eight grounds – see http://www.workingmums.co.uk/working-mums-magazine/hot-topics/7890872/extending-flexible-working.thtml. If you feel the grounds on which they have rejected your appeal are not reasonable, you can appeal, but it would be a good idea to take into account their concerns and reach a compromise. 

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