Flexible working request turned down: ask the expert

I am currently on maternity leave, and have requested to go back part-time on my return to work. I first sent an informal email to my boss to enquire about requesting to work part time, and she replied straight back saying that this would not be possible. I then submitted a formal request to my boss following the procedure set out in my work’s flexible working policy. My manager and I then arranged a meeting to discuss my request, in which she confirmed that working part-time is not an option. She has followed this up in writing, and the reasons given for refusing my request are: although the department has taken on a number of new staff of the same banding as me, this was in response to vacancies and additional funding to cope with the increased demand on the service; current part time staff are being asked to work additional hours as they are unable to cover the service on a regular basis with the current staff base and activity; they will be advertising for new staff of my banding in the next few weeks, and if any applicants request part-time hours they will consider them for a job share position with me (although she did not mention trying to recruit part-time staff specifically). I would like to appeal the decision, as I feel that my manager had already made up her mind before I had submitted my formal request. Do you think I have any grounds to do so? I have stressed to my manager that I am willing to be flexible in how many days I work, what days, and have also suggested working shorter days, but these have all been turned down.

The Flexible Working Regulations are prescriptive and employers can only reject a request for flexible working on the following specific grounds:

– 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 essential that an employer’s notice of refusal is dated and states which of the above statutory grounds within section 80G(1)(b) of ERA 1996 applies i.e. the above grounds. A rejection decision must also contain ‘sufficient explanation’ as to why the grounds apply in relation to your specific application. Your notice of refusal should also have included details of the appeal procedure.

“You have 14 days from the date of receiving the notice of refusal to appeal the decision in writing and it is key that you respond within this timeframe.

It appears from the information you have provided that your employer’s main reason for refusing your request for part time hours is due to the high demand on the service which could fall within one or more of the prescribed grounds set out above. However, it seems to me that you may have good grounds to assert that your employer’s refusal to allow you to work part time hours is an act of indirect sex discrimination contrary to the Equality Act 2010.

This is because the requirement to work full-time could put women at a disadvantage compared with men because more women than men work part-time or job share in order to accommodate childcare responsibilities. Therefore, irrespective of whether your employer can establish they have complied with the Flexible Working Regulations, they would still have to establish that their decision to refuse your request to work part time can be objectively justified.

This may be difficult for them to do given they already have a number of part time workers and they are in the process of recruiting additional employees. Indeed, careful consideration must also be given to the way in which your employer advertises for the new roles. The Equality and Human Rights Commission Code of Practice warns against specifying unnecessary working patterns. If a job could be done either part-time, full-time, or through job share arrangements, this should be stated in the job description. As well as avoiding discrimination, this approach is likely to widen the pool of potential applicants.

I would recommend that you put in your appeal before the end of the allowed timeframe and seek professional advice as soon as possible.

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