Q And A
Having trouble with flexible work request: ask the expert
I currently work in the public sector and following the birth of my child I have taken Carer's leave. I am due back in work in January and wish to change my hours when I return. I requested an early return and a change in hours via email in July and, after 5 weeks, I was told there was no job available, but I could return on my previous hours to a different job. The job I was offered involved a lot more work than my previous role and required me to be flexible in the days I would be required to work. As this was not possible due to nursery etc, I had to decline and revert to my original return date. On advice from ACAS, I submitted an official request to change my hours on my return under the statutory rights. After 29 days, I have still had no reply whatsoever other than the original acknowledgement. I feel like I am being totally ignored and am after some advice as to the next steps to take.
Answer by Laura Livingstone
I assume by Carer’s leave you are referring to Maternity Leave and I will answer your question on this basis. By law, after 26 weeks ordinary maternity leave, you are entitled to return to the job you were employed in before you left, on the same terms and conditions as you have would have enjoyed had you not been absent.
Similarly, after additional maternity time (up to another 26 weeks), you are entitled to return to your previous role unless your employer has a very good reason for not being able to offer your previous job back, for example redundancy in which case they must offer you a suitable alternative job on similar terms and conditions which are no less favourable than you were on before. You are allowed, as you did, to change your mind and request an earlier start date, provided you gave your employer 8 weeks’ notice of this.
You have not said how much notice you gave your employer of wanting to return early, but in any event after 8 weeks you should have been able to return to your old job, or another job on the same or similar terms as discussed above. The fact that your employer offered you a significantly different role; more work and different hours would mean that (unless they could justify this decision) they were in breach of contract and you would have a claim for unfair dismissal, and possibly maternity discrimination as a result of being treated unfavourably on account of your maternity leave. If successful you would be able to recover compensation which should include lost earnings and injury to feelings. If you are able to establish maternity discrimination, the compensation is potentially uncapped.
If limited to unfair dismissal the compensatory award is £68,400. You explained that you then returned to your job at the original return date but wanted to change your hours. There is no automatic right to return after maternity leave on a part-time basis, or on terms preferable to you. However, as it appears you have done already, you can apply for flexible working to change the hours you work or the times that you work. Your employer is legally required to consider this request and must respond to you within 28 days. As you have not heard from your employer within this time, you have a claim against them under the flexible working legislation for compensation of up to 8 weeks pay. You may also have a claim for indirect sex discrimination.
If you are keen to keep your job, it may be an idea to alert your employer to the fact that you are contemplating issuing a claim unless they take some urgent action. Alternatively you may resign and claim constructive dismissal – this is, however, quite high risk since you need to establish that there was a fundamental breach, for example of trust and confidence between you and your employer, which forced you to resign. The resignation therefore operates like a dismissal. You will then need to submit your complaint to the Employment tribunal within 3 months of your leaving date. Alternatively, if you do not want to make a claim at this point you could initially raise a formal grievance regarding your concerns and see if this prompts a more favourable response. Having exhausted any internal process it would still be open to you to make a claim. If claiming constructive dismissal, however, you would need to resign promptly following any grievance not being upheld.
For more information on how to make a claim please look at the government website at http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/Employmenttribunals/DG_176137
Laura Livingstone is an employment lawyer for Davenport Lyons in London. Her practice focuses on contentious and non-contentious employment work, but she leans towards the non-contentious. She has advised a wide variety of corporate clients in all areas of employment. Harriet Vaines assisted with this answer.