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I am currently on maternity leave and I am appealing the decision to reject my flexible working application for the hours I want when I return to work. I now have two children. My eldest has special needs and we are going through the process of applying for DLA which I have been told we should get. I suggested different patterns of part-time hours (3- or 4-day week) or a couple of job share options. All of which they say will not work. There is a responsive element of my role which they say needs someone there full time/real time, but this is covered by other team members when I am on leave/off sick. I also used my annual leave in the run up to maternity leave to have a 4-day week for nearly 3 months. Nothing was said about any adverse impact this was having at the time. They say that for continuity reasons the job isn’t suited to part time or job share, but have provided no evidence just stated that continuity is an obvious and key principle of the role. I suggested a trial period in my meeting, but this has not even been acknowledged in the rejection stating why it is not possible. Another reason for rejecting a job share is that there are elements to my role, the responsive part, which has a sporadic pattern and a development and support role which complements and fills up the rest of the time. Their argument is it would be difficult to recruit and sustain a part-time member of staff. There are two people from the team seconded to cover these parts of my role and one has expressed an interest in job share and would be able to develop skills for the support part of the role. I learned that part of the role by doing it. I work for a University and staff in other departments seem to have no trouble working out flexible working arrangements. However, I work in a male-dominated department and as far as I’m aware no flexible working application has been approved in the last few years. Am I being unrealistic in asking for a trial period. If they refuse again not to trial a working pattern do I have any further grounds after the appeal process?
I understand that you are currently on maternity leave with your second child and you have submitted a flexible working application, which has been rejected. I understand that you suggested different working patterns, including 3 or 4 days per week and job share options. Your employer has rejected your flexible working application.
When you submit a flexible working application, your employer should deal with this application through a set procedure. For example, within 28 days of receiving your flexible working request, your employer should arrange to meet with you in order to discuss your application. Within 14 days of the date of the meeting, your employer should then write to you either to agree to the new work pattern and set a start date, or to provide grounds for the rejection of the application and set out the appeal procedure. You can then appeal the rejection of a request, but must do so within 14 days of the request being rejected. Within 14 days of receiving the appeal notice your employer must arrange a further meeting in order to discuss your grounds of appeal. Finally, within a further 14 days after the meeting your employer must deliver the appeal decision to you.
If your employer wants to reject your flexible working application, it can only do so based on eight specific grounds, which are as follows: –
· The burden of additional costs.
· Detrimental effect on ability to meet customer demand.
· Inability to re-organise work among existing staff.
· Inability to recruit additional staff.
· Detrimental impact on quality.
· Detrimental impact on performance.
· Insufficiency of work during the periods the employee proposes to work.
· Planned structural changes.
It is not clear from your email whether your employer has actually specified any of the prescribed reasons for rejecting your flexible working application. If your employer does not comply with the prescribed timetable set out above and/or uses a business ground for rejecting the application, which is not included in the list above, you may have a claim under the flexible working regulations. Any such claim should be presented to the tribunal within three months of the procedural breach or within three months of the date on which you were notified of the appeal decision.
You may also have a sex discrimination claim based on your employer’s rejection of your flexible working application. This would depend on its reasoning for rejecting the application and how it has treated similar cases. You suggest that your employer has not approved any flexible working applications in your department in the last few years. If your employer has a policy of rejecting flexible working applications, this will be discriminatory unless it can objectively justify its behaviour. Any sex discrimination claim must be submitted to an employment tribunal within three months of the discriminatory act.
You also mention a trial period in your email and state that your employer has rejected this. Unfortunately you cannot insist that your employer agrees to a trial period. However, your employer’s failure to agree to this may add weight to your argument that your employer has behaved in a discriminatory way by not considering other options to rejecting your flexible working application outright.
My advice would be for you to submit your appeal against your employer’s decision to reject your flexible working application. You should again suggest that your employer should give you the option of a trial period. If your employer rejects your application again or does not comply with the prescribed timescale for handling requests, you should submit a grievance outlining why you consider your employer’s actions to be unfair/unlawful. Depending on the outcome of your grievance you could then consider submitting a claim to the employment tribunal for breach of the flexible working regulations and/or sex discrimination. You may also be able to resign with immediate effect and bring a constructive unfair dismissal claim however you should take further legal advice before taking this route.
Please contact Tracey Guest on 0161 975 3823 if you would like further advice in relation to this matter.