I am currently on maternity leave and due to start back in November. My intention is to put in a request for flexible (and part-time) working. In my contract it states that my work must include some weekends. I have usually worked about 3 in 4 Saturdays and 1 to 2 in 4 Sundays before I became pregnant. Being a single mum I have been searching for childcare and have been unable to find any childminders/nurseries in my area that will mind my child on weekends. I have looked at 20 plus childminders/nurseries, calling all the childminders and asking them direct. There are no other childcare solutions for me (eg family/friends). In the circumstances can my employer refuse a request from me NOT to work any weekend shifts? It is not as though I can ‘compromise’ by even doing fewer weekends, as there is no childcare provision at all for weekends in my area. Would I be able to force them in effect to not make me work weekends if I can prove there is no alternative solution for me? Many thanks.
There are two ways to ask for flexible hours when returning from maternity leave. The first way is to make a general request (which can be done verbally at your return to work meeting or in writing). Your employer is under a duty to consider the request and can only refuse the request if there are good reasons for not being able to accommodate the hours you asked for. If their refusal of your request is unreasonable then you could claim sex discrimination.
The other way to request your change in hours is through the right to request flexible working under the Employment Rights Act 1996. Employers must follow a set procedure and will only be able to refuse a request where there is a recognised business ground for doing so. There are strict time limits that must be followed in this procedure and a meeting must be held with you to discuss your request. If your employer fails to follow the procedure or does not give proper business reasons for refusing your request then you can claim compensation.
To make a flexible working request you must satisfy certain conditions, such as:-
A) You must be an employee,
B) You must have worked for the employer continuously for 26 weeks at the date the application is made; and
C) You must not have made another application to work flexibly under the right during the past 12 months.
To make the request you must make a dated written request (whether on paper, by e-mail or fax) to your employer setting out the following:-
A) That the application is made under the statutory right to request a flexible working pattern,
B) Confirmation that you meet the eligibility criteria,
C) The flexible work arrangements that you seek, ie to care for your child,
D) An explanation of what effect, if any, you think making the change would have on the employer and how in your opinion, any such effect might be dealt with,
E) The date on which the proposed change should become effective,
F) Whether a previous application has been made to the employer and if so, when it was made.
I recommend that you make a formal flexible working application as set out above and within this request, I also recommend that you explain exactly why you are making the request, ie, because you cannot find any childminders / nurseries that work weekends and explain the steps you have taken to date as set out in your question.
Once the formal flexible working request is submitted, your employer has to invite you to a meeting and offer you the right to be accompanied. There are specific time limits they must follow in arranging the meeting and then providing you with their decision. You will also have the right to appeal if you are unhappy with their decision.
Reasons for refusal of your request are limited and include the following;
A) The burden of additional costs,
B) Detrimental effect on ability to meet customer demands,
C) Inability to reorganise work among existing staff,
D) Inability to recruit additional staff,
E) Detrimental impact on quality,
F) Detrimental impact on performance,
G) Insufficiency of work during the periods you are proposing to work, and/or
H) Planned structural changes.
In summary, my advice is for you to lodge a formal application for flexible working to take effect upon your return to work in November. You should submit this as soon as possible.
If your employer does not deal with your request properly or does not give reasons for refusal which fall into the above categories then you may have a claim for sex discrimination or failure to properly consider your flexible working request and you will also have the option to resign and bring a claim for constructive unfair dismissal.
If your employer does not agree to your formal flexible working request, please telephone Tracey Guest on 0161 975 3823 for further advice.