Flexible working denied: ask the expert

I have recently had my flexible work request denied after asking to reduce my days from 5 to 3 when I return after my maternity leave. They asked me to come in for a meeting (after the 28 days deadline) and they asked my reasons for putting in my request. I stated it was so I could care for my child who has some medical problems (severe eczema and milk allergy) and I have been medically advised to continue breastfeeding and so full-time childcare is not possible at the moment. The letter makes no reference to the reasons why I have asked to reduce my hours and states it has been refused because of the additional costs to recruit a job share and that there would be more man management time for my boss if there is a job share. They state that the proposed hours will have a detrimental impact on quality and that being available during the normal working week is imperative. Since I have been on maternity leave my boss has employed a new person and he let her reduce her days to 4 due to childcare, even though the role she applied for was advertised as full time and this person is a former colleague at his previous work so it seems there is some flexibility for some. I now have 14 days to appeal and my daughter was seen by a consultant at the hospital today who said I need to continue breast feeding as that is my only option so he said he would write a letter which may help with the appeal. Do you have any advice? I am happy to be flexible and reduce to 4 days which I know they let the other person do but if they still say no I think I may have to resign which is a scary thought.

Introduced into the Employment Act in April 2003, the right to request flexible working is now fairly common, particularly amongst women returning to work following maternity leave.

Although the Act stipulates a fairly stringent procedure which employers have to follow, there are currently no significant consequences if these are breached. In your case, it seems the employer has followed the procedure correctly – stating at least two of the eight specific grounds that are allowable within the law for rejecting such a request. They have given you a right of appeal. Whilst they did not convene a meeting within 28 days there is no effective remedy for this, now that your employer has convened a meeting.

You may, however, have grounds to pursue a sex discrimination claim. In practice, this is a remedy that many employers and employees overlook. It is possible that your employer’s refusal to allow you to reduce your working week is an act of indirect sex discrimination. In such circumstances, your employer would have to objectively justify their refusal of your request to work part time.

This would involve a careful examination of whether the reasons your employer purports to rely upon are genuine and cannot be overcome by any alternatives. If their decision cannot be objectively justified then you could be entitled to compensation and you may even be justified in terminating your employment and pursuing a constructive dismissal case. You could then claim loss of earnings (unlimited in a sex discrimination claim) and possibly compensation for unfair dismissal (assuming you have the appropriate continuity of employment to bring such a claim).

The fact that one of your colleagues has been allowed to work part time may assist in establishing that your employer cannot objectively justify their decision in your case. However, it is important to bear in mind that if the colleague whose request for part time hours has been granted has a different role and responsibilities to you a like-for-like comparison may not be helpful in this instance.

My advice would be that when appealing the decision that you provide specific practical solutions demonstrating how you would be able to perform the role to the same standard within reduced hours. You should also suggest alternatives (including a 4 day week).

If you find yourself at this stage unable to continue with the job and have to resign it would be worth seeking legal advice concerning potential claims for either sex discrimination or constructive dismissal.”

 




Comments [3]

  • Lorraine says:

    I’m contracted to 28 hours per week the company i work for are putting an eight week roster which will be four days on and four days of but also bank 28 hours of us which will mean the following roster that comes out we will have to pick up an extra shift which could be day or night .Now two other colleages have the same job title 21 hours per week but will gain from this as they will be banking 49 hours at the end of the roster . They will have a choice to wether they would like to put it is as overtime or take the 49 hours of in the next roster cycle were other members of staff including myself don’t have that option how is this fair as i am a single mom with four children and this would mean i could be working 5-6 days a week and only 1 day of could you please help

  • Anonymous says:

    I did not receive a meeting after I sent my application. I did not receive a reply within 28 days.

    Editor’s note: Here is full information on the legal procedure for applying for flexible working – https://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml. If you feel the correct procedure has not been followed, you can appeal.

  • Anonymous says:

    I currently work shifts, these being all over the place… 7:00am – 1:00pm, 1:00pm – 8:30pm and sometimes 7:00am – 8:30pm. I recently applied to work 7:00am – 1:00pm Mon – Fri and to work 10 hours either on the Saturday or Sunday. I applied for this on the 1st July and never received a reply until the 17th August which is 48 days… is this legal? I also never received a meeting, I sent the request through to HR and got a reply from HR 48 days later, there was no meeting. It was refused on the ground they could not cover. I find this hard to believe as other staff have flexible working hours, 9-3 8-4 and this is acceptable. I have not been given any alternative working hours and since I can only apply once I am a bit stuck. I have only been given 7 days to appeal also… is this legal? They have sent a job I might be interested in… no guarantee that I will get it… My baby is only 7 months old and I do not wish to work till 5pm as I will only see her for 2 hours a night! Could you please let me know what I can do and if the procedure has been followed?

    Editor’s note: This information outlines the legal procedure for flexible working applications – https://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml. You can appeal based on whether your employer has followed the correct procedure.

    Thank You



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