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.
Hi, I'm a full-time mum, but my son starts school in September and I have to look for work. I have customer service skills and cash handling skills, but I can find nothing in the area that I want to work in.
Anonymous | Report this comment
I'm a stay at home dad. Is this service just for mums?
Editor: It is free for anyone to use.
Anonymous | Report this comment
Hi, I've been working in retail for 3 years now and have applied for flexible hours around kids' school routine, my company have refused saying they don't have this shift available, but several employeees have this shift. I have emphasised my urgency over this matter as I don't have anyone to help me and cannot afford childcare. Can you please advise me my rights and what to do next.
Editor: You can appeal the decision. Your employer is only able to reject a flexible working request on several clearly defined terms - see http://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml - and these must be applied 'reasonably' so if you have been discriminated against in the rejection of your appeal as other colleagues work this shift pattern then you can say this in your appeal. Or is it the case that the company already have enough people on this shift and would have to take someone else off this shift to accommodate you, which would be a different issue?
Anonymous | Report this comment
Hi, I am finding it really hard to find a job. I have 2 kids - one is at nursery and the other is at school. My oldest has ASD and my partner works shifts so it's hard for me to find anything so if anyone can help that would be great, thank you.
Editor: If you put in a few more details about the kind of work you are seeking, what hours, what experience you have, etc, and send it via the Advice & Support/Q & A page box, I can forward this to our careers advisor. The more information you can give the better she can advise you.
Anonymous | Report this comment
I am not bothered what job. I don't really have a lot of experience. I worked in a nursery for a few years and hours would have to work around my partner - he swaps between dayshift and backshift.
Editor: Can you reply via the Advice & Support/Q & A page box so we have your email and can ask any follow-up questions on the kind of work you have been applying for, etc?
Anonymous | Report this comment
Hi, is there any IT work that can be accommodated around 10 to 2pm? Thanks
Editor: We advertise flexible jobs, but you would have to keep an eye out for specific job posts or you could contact firms in your area to see if they are indeed of a part-time IT person. Having someone part time might work best for a smaller firm.
Anonymous | Report this comment
I have worked in the care industry for 5 years. My maternity leave ends 2nd of May. I want to go back to work, I called my manager to inform her that I shall be returning to work part time. She asked to put it in writing which I did. She then sent me a form to fill in, I did, we then arranged to meet. When we met, she asked me the same questions I had already answered in the form and told me she can't make a decision until she talks to her manager and that will be in two weeks time! I feel very frustrated as am not sure what they are going to tell me. What should I do! Look for another job? Please advise.
Editor: Your manager appears to be following the correct procedure. She has two weeks from the date of the meeting to respond - see http://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml. If your request is refused, it must be refused according to one of the eight reasons outlined and she must have given it due consideration. You can appeal if you think this is not the case.
Anonymous | Report this comment
I have just received a refusal reply letter from my company, stating that they will not take me back as a part time worker as I requested. I am very angry and upset. Please advise where and what do I do. My child is partially blind and I am struggling to live her with people as she needs a lot of care.
Editor: Can you send full details, including the reason for refusing the request, via our Advice & Support/Q & A page box so our experts can get in contact with you if they need more information.
Anonymous | Report this comment
The reasons given were an inability to reorganise work among existing staff. 2). A detrimental impact on quality and 3). A detrimental impact on performance. I informed them that its a temporary request - once my child has a structure of how she gets her support then I will go back to full time.
Editor: They need to give a full explanation of all these reasons to show they have carefully considered your request. If you do not believe the reasons are valid or they have not followed the full process [see http://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml], you can appeal. For any appeal, try to anticipate their potential objections and provide possible solutions, such as covering busier periods. Are other people in your department working flexibly? It may also be a good idea to put a time limit on how long you need this flexibility.
Anonymous | Report this comment
Thank you, I will request time limit.
Anonymous | Report this comment
My employer has not met me formally after my application to go part time, and two months after my request has still not given me a decision. What can I do?
Editor: The following gives information on the timetable for flexible working - http://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml. You could chase the application and consider lodging a grievance with your employer.
Anonymous | Report this comment
I am due to return to work (after maternity leave) in approx one month. Four months ago I applied to my firm for flexible working hours. My application is still not resolved. They ignored my request for nearly 3 months and I have just been informed that I will need to seek legal advice because they have decided not to approve my application on the basis that the role I previously held was not conducive to flexible working. It was the usual procedure to transfer people to another post where flexible working would be possible. It is a large firm, with lots of normal hour appointments. Are they obliged to offer me a transfer to another unit if they have done this for many other employees?
Editor: Firstly, if the timescale outlined in the flexible working legislation is not followed - see http://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml - you could appeal on those grounds and if you believe the grounds on which your request was turned down are not reasonable. Has the company recently changed its policies? If not and if there is a precedent for transfer you could argue this on appeal.
Anonymous | Report this comment