I am a teacher and have just had a baby so am currently on maternity leave. I am due to go back to work in March 2017. I put in a request for flexible working in July 2016 to work Mondays and two other days. In November I asked that one of those two days not be a Friday. After a lot of chasing they finally made a decision and accepted the request to reduce to three days in December. The issue is that, although my employer has agreed that I can work three days a week, they have not told me which days this will be. I have given them possible combinations of which three days I can work (there are some limitations due to childcare availability), but they are not getting back to me with a decision as to which days. This is a problem for me as I cannot sort out childcare for my baby until I know the days that I will be working. I have sent numerous emails, but it seems that I am now being ignored and they will make the decision when it suits them. What can I do in this situation?
I note from your question that you are currently away form work on maternity leave and are due to return in March 2017. You note that you had made a flexible working request to reduce your working hours to three days per week and when you made the application you stated that you wanted to work on Mondays and two other weekdays. You then contacted your employer in November 2016 and stated that you did not want to work on Fridays. In December 2016 your flexible working request was accepted, but you were not informed which three days you would work as this was still to be pre-determined. You have still not yet been given clarification of this.
Permanent Change of Working Hours
When a flexible working request is accepted the new work pattern will be classed as a permanent contractual variation to your employment contract. As your original request stipulated working three days per week (including a Monday), and this was accepted, your employer cannot now go back on this without your consent as otherwise this would be a breach of your contract of employment.
Dealing with the Request in a Reasonable Manner
I note that you made the flexible working request in July 2016, but did not receive any outcome from your employer until December 2016 and that this has not yet been finalised definitively as you are still not aware of the days you will be working when you return. Generally speaking, once a flexible working request is submitted then your employer must respond within three months (unless any further extension of time is agreed). It therefore appears that they have failed in their duty to deal with the request in a ‘reasonable manner’.
Indirect Sex Discrimination
Should your employer not agree to let you have Fridays off then they should write to you giving the business reasons for this refusal. It may be possible for you to argue that any such decision amounts to indirect sex discrimination, although your employer may be able to justify any potential discrimination by demonstrating that the requirement for you to work on a Friday is a proportionate means of achieving a legitimate aim.
I would recommend that you arrange a meeting with HR to try and resolve this matter informally. If this fails to conclude matters, I would advise you to raise a formal grievance about the way they have handled your flexible working request. If this doesn’t resolve the problem then I would suggest that you take further specific advice from a solicitor as you may have grounds to complain that the flexible working request was not dealt with in a ‘reasonable manner’ and/or that your treatment constitutes sex discrimination.
Please note that any claim that your employer has not dealt with your flexible working request in a reasonable manner must be submitted within three months of hearing your employer’s decision or the date the employer should have responded to their request (but failed to do so) and that you would also need to go through the Acas pre-conciliation procedures before submitting a claim.
Similarly, any claim for indirect sex discrimination would need to be brought within three months of the incident and, again, the Acas procedure would need to be completed before the claim was submitted.
Should you require any further clarification on the above points then please do not hesitate to contact Tracey Guest of Slater Heelis on 0161 672 1246.
*Helen Frankland assisted in answering this question.