Flexible working turned down

I am a level 3 teaching assistant at a special needs school and before leaving for maternity leave worked full time. On my return I have requested to work part time (3 days per week). I have been told that this isn’t possible and I can either return 5 mornings or 5 afternoons at my current level of employment because of the need for handover time. If I would like to return for 3 days then I have to take a demotion [to a temporary TA1 position] and a pay cut. This being because this ‘best suits the needs of the school’. It is causing me a great deal of stress and worry when I should be enjoying this precious time off with my baby daughter. Do I have any rights to tackle this decision as finding childcare for 5 afternoons/mornings just isn’t financially possible as nurseries/childminders charge by the day.

I note from your question that you are a Level 3 Teaching Assistant who is currently on maternity leave. I further note that upon your return to work you had asked to work part-time (3 days per week) but that your employer has stated that this is not possible.

Generally speaking, when you return from maternity leave you have the right to return on terms and conditions that are no-less favourable than those which would have applied had you not been absent. However, I note that you have now made a request to alter your hours and work part-time. This is most likely to be viewed as a flexible working request. When an employer rejects a flexible working request they can only do so on certain specified grounds, these being : –

  • the burden of additional costs;
  • detrimental effect on ability to meet customer demand;
  • inability to reorganise 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; or
  • planned structural changes.

Your employer has stated to you that it is their policy and practice to offer a part-time return to work following maternity leave for a maximum period of 12 months. They also state ‘ to maintain consistency for pupils part time TA3 posts must be either 5 mornings or 5 afternoons (to allow for a lunchtime handover) although a mixture of some full days and half days can be accommodated where a member of staff wishes to work more than 2.5 days. We are unable to offer 3 full days as this provides no time for vital day to day handover.’

In light of the above it is likely that the reasons they have given to you would fall within the specified grounds listed. In addition, an employment tribunal is unlikely to question the commercial rationale or business reasons behind a decision to refuse a request. Its role is to consider whether the request was taken seriously, review the procedure followed, assess whether the decisions were based on correct facts and consider whether the reason for refusal fell within one of the permitted grounds.

I would suggest that you review your employer’s flexible working policy/maternity policy to see if there is any right of appeal to making a flexible working request. Employees no longer have a statutory right to an appeal, but offering an appeal helps the employer to demonstrate that they are handling request in a ‘reasonable manner’. An appeal meeting also provides an opportunity for your employer to review your request and for you to question in detail why the decision has been reached and whether the grounds for refusal were based on correct facts.

If you are still dissatisfied with the outcome of your application after the appeal procedure has been exhausted, you will need to deal with the situation accordingly.  In the first instance, it is desirable that any issues are resolved through informal discussions. Alternatively, if this does not resolve the problem you may consider submitting a formal grievance. If submitting a grievance does not resolve the problem then I would suggest you take further legal advice regarding your situation. Please note that any claim must be presented to a tribunal within 3 months. You would need to go through the Acas pre-conciliation procedures before submitting a claim.

You also note that your employer has stated in the past some people have elected to return to work on a ‘temporary’ TA1 contract for 12 months, which they say would offer you ‘greater flexibility’. As you wish to work part time (due to your childcare commitments), it may also be also possible to argue that that not allowing you to work the hours you requested, amounts to indirect sex discrimination. Unless your employer could objectively justify the need for a full-time worker to do the job, the requirement might well be indirectly discriminatory. Please be mindful that any claim for sex discrimination should be made to an employment tribunal within three months. You would also need to go through the Acas early conciliation process before any claim could be lodged.  I would strongly advise that you take further independent legal advice before submitting any such claim.

I hope you find the above information of use. Should you require any further clarification on the above points then please do not hesitate to contact Tracey Guest of Slater Heelis LLP on 0161 672 1246.

*Helen Frankland assisted with answering this question.

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