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I returned to work recently after nine months’ maternity leave. I requested to go back four days, but my manager emailed back 20 minutes later saying no. I have struggled full time so have decided to leave and handed my notice in last week. My manager was discussing replacing me and said my job didn’t require full time anyway. I think she may have someone else do it part time or someone from another location cover the position, something which she said was not an option when she refused my part-time request. I’m just a little frustrated that she refused my request and now I’m leaving she said it can be done part time. Did she have the right to refuse my request initially if this is the case? Is this constructive dismissal?
Requesting flexible working arrangements may be done in one of two ways. You can make a general request under the Equality Act 2010 to work flexibly, e.g. to enable you to meet your caring responsibilities. Your employer can only refuse your request if it has good reasons for doing so, e.g. the proposed hours cannot be accommodated. In your particular case, no reasons appear to have been given for refusing your request to work four days instead of five. Your employer’s prompt refusal could potentially relate to your maternity leave absence or return to work and, in either case, could give rise to a potential claim of sex (maternity) discrimination which you could pursue in the Employment Tribunal.
Assuming that, when submitting your request, you had 26 weeks’ continuous service with your employer and had not made a similar request within the last 12 months, you had the right to request flexible working arrangements in accordance with the Employment Rights Act 1996. This type of request must be made in writing and must state the proposed changes to your current working arrangements and how these might impact the business, if at all.
On receiving an ERA 1996 request to work flexibly, your employer is obliged to seriously consider it. If, as you say, you received a flat ‘no’ within 20 minutes of having made the request, it is doubtful that your employer gave it lawful consideration. Your employer ought to have discussed the proposals with you and thereafter, considered the benefit to you of the proposed change in hours and weighed the adverse impact of implementing those changes on the business, if any, before deciding on your request.
Refusals can only be one of the following prescribed business reasons:-
– the burden of any additional cost associated with implementing the changes you have requested is unacceptable to the organisation;
– your employer is unable to reorganise work among existing staff;
– inability to recruit additional staff;
– the changes you seek would have a detrimental impact on quality;
– the changes you seek would have a detrimental effect on your employer’s ability to meet customer demand;
– performance would be adversely affected by the changes;
– there is insufficient work available during the periods you wish to work;
– planned structural changes would render the changes you seek unworkable.
A failure to seriously and carefully consider a request under the ERA 1996 for flexible working and/or a decision to refuse your request for a reason other than a prescribed business reason will entitle you to pursue a claim for compensation against your employer in the Employment Tribunal.
It is particularly disturbing to note that your employer was considering replacing you with someone else, possibly on a part-time basis, either before or upon your return to work from maternity leave. Steps taken in an attempt to replace you could amount to a breach of contract by your employer. Any evidence as might suggest that by refusing your request outright, your employer sought to force you out of your role, could be construed by an Employment Tribunal as amounting to a breach of contract by your employer. If, as you say, working full time was a struggle such that you had little option but to resign then it would be open to you to claim that you had been constructively dismissed and to pursue a claim of unfair dismissal in the Employment Tribunal.
You might also seek to argue that the requirement to work full time, (notwithstanding your employer later acknowledged that part-time working was feasible) amounted to a, ‘provision, criterion or practice’ which puts working mums, and you in particular, at a disadvantage because of their child caring responsibilities. In these circumstances, a claim of indirect sex discrimination which you could pursue in the Tribunal would also be open to you.
Strict time limits apply to lodging claims in the Employment Tribunal and you must, in the first instance, complete the ACAS Early Conciliation process. Any delay could mean that you are prevented from pursuing your rights.
Although you have only recently resigned, it is advisable to obtain full advice on the various courses of action open to you. If you are a union member, your union rep will be able to provide free initial advice and assistance. If you are not in a union, the Citizens Advice Bureau or local Law Centre may be able to help. The Simpson Millar Employment Team is always happy to help 0808 129 3320.