Policy is failing to recognise or meet the needs of working mums during the COVID-19...read more
I have recently had my flexible work request rejected on the grounds of the inability to reorganise work amongst other staff, putting additional pressure on other members of staff and a detrimental impact on the business. I work in a managerial role, supporting a professional services company. Before I went on maternity leave, the team comprised two managers (of which I am one), a midweight and a junior role. In my absence, the midweight left and was replaced, in an office remote from me, with two very junior roles (only one of which is permanent). I was not informed or consulted. I have been given the right to appeal, but I strongly believe that the team changes have been made deliberately to put me in a position to fail. What shall I do? Do you have any advice? What should I do if it is again rejected?
It is difficult to fully advise you without having sight of your original request for changes to your working pattern and indeed your employer’s full response. However, it appears that your employer has probably complied with their obligations pursuant to the applicable Flexible Working legislation.
They can reject a request if they base their decision on one or more of eight specified justifiable business reasons. Inability to reorganise work amongst other staff is one of the legitimate reasons, although putting additional pressure on other members of staff and a detrimental impact on the business are not (without specifying whether the detrimental impact is on quality or performance).
It is not clear whether your employer has provided a “sufficient explanation” as to why the chosen ground(s) apply in relation to your application – which is an important aspect of compliance with the legislation.
Irrespective of whether they have complied with the Flexible Working Regulations, you may have a claim for indirect sex discrimination if your employer cannot objectively justify their decision and demonstrate why any additional work cannot be covered satisfactorily by the rest of your team.
You have indicated in a separate email that your employer has previously accepted such requests from a number of other employees. This may support a claim for indirect sex discrimination. In order to successfully defend an indirect sex discrimination claim your employers ought to suggest alternatives which may involve a trial period or might allow your request to be accommodated in a modified form. Indeed, it may be appropriate for you to make such suggestions so that your employer would have to put forward good reasons why your suggestions could not be accommodated.
It would be difficult to prove that the changes to the rest of your team have been made as a deliberate act to make it difficult for you to work on a flexible or part time basis. However, if you are able to provide concrete evidence to substantiate this, it would certainly form the basis for a direct sex discrimination/maternity discrimination claim.
Good luck with your appeal, but please don’t hesitate to contact me direct should you require further assistance.