Part-time work refused unless I take a pay cut and move down a grade: ask the expert

I made an application for flexible working in 2013 after maternity leave and they told me it would be refused unless I dropped my grade and pay. They did not follow procedures correctly or the correct formal process. I decided to return full time. I am now re-applying and in an informal chat prior to application my manager has insisted that they will again refuse unless I drop my pay and grade because they say my role has supervisory elements that make it impossible to do part time. However, other colleagues in different roles work part time on the same grade and I would essentially be doing the same role minus the supervisory elements and project work. My role would be given to a junior person without children. Working time at a lower grade [around £5k less] would make it an unaffordable option and would dramatically change my status and responsibilities within the role. Can they insist I do this if I want to work part time? There are several other part-time workers on the same grade in other teams with similar levels of responsibility, one of which was granted after returning from maternity leave. I am under the impression that they do not want me to remain in my position and would rather I accept a lower role or leave. If they insist would this not be detrimental to my rights and discriminatory/a disadvantage to me as a female that I have to accept a lower job because I am a mother with part-time requirements? I feel as though I am being pushed out and will end up having to resign over this. I have been there for six years and continuously gone beyond what is required in my role so this is a bit of a kick in the teeth. In addition to childcare (two small children)/work life balance (I am also studying for a degree part time), one of my reasons for application is that we are being forced to relocate which will lengthen my day and the commute to work further.

You should first ensure that your request complies with the statutory procedure. If it is compliant, your employer will only then have an obligation also to comply with the statutory procedures. You should therefore ensure that your request:-

– Is in writing and is dated.

– States that it is an application under the statutory procedure.
– States the change that you are asking for and when you require it to take effect.
– Explains what effect, if any, you believe the change will have on your employer and how any such effect can be dealt with.
– States whether you have previously made a flexible working application to your employer and when.

Provided you have complied with the requirements above, the statutory right is then to “request” flexible working. This right includes a requirement that your employer deals with your request within a reasonable time and notifies you of the outcome of your request within the 3 month decision period.  If your employer rejects your request, there are only 8 grounds on which it may lawfully do so. These grounds are listed in the legislation as follows:-

– 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.

– Planned structural changes.

Provided your employer deals with your request within a reasonable time, notifies you of the outcome of your request within the three-month decision period and relies on one of the eight reasons set out in the legislation, it appears that the only basis on which you can challenge the rejection is by demonstrating that your employer’s decision is based on an incorrect set of facts. For instance, a challenge as to why your current role cannot be performed effectively on a part-time basis.

As your employer is no longer required to provide “sufficient reasons” for the rejection, you may need to raise the reasons yourself as to why your current role can be performed on a part-time basis. You should not only highlight the benefits to you of you continuing to perform the role part time but also the benefits to the business. You may also wish to raise the comparison with the other employees, how their part-time working benefits the business and the possibility of the other customer service-focused role you mention in your email, insofar as these help you.

At this stage I recommend that, once you have followed the above advice through, you seek further advice. You must also ensure that you do so before any decision to resign is communicated to your employer.

*Caroline Fofie is Head of Employment and a Senior Associate at McMillan Williams Solicitors Limited. She qualified in 1995 as a solicitor in England and Wales and is a specialist in contentious and non contentious employment law matters. Caroline advises employers and employees on all aspects of employment-related litigation. She also advises companies and individuals on a broad range of employment issues ranging from the start to the conclusion of the employment relationship. She has extensively and successfully defended complex and substantial Employment Tribunal cases, including the full range of unfair dismissal, wrongful dismissal and breach of contract claims, as well as defending all types of discrimination claims, including sex, and pregnancy related discrimination, and claims arising from collective agreements such as multi-party unfair dismissal and protective award claims. She has considerable experience drafting and negotiating settlement terms such as ACAS agreements, compromise agreements and consent orders. Caroline also provides full advisory support in relation to pre-dismissal matters, for instance, in relation to disciplinary, dismissal and grievance processes, redundancies, restructuring and reorganisations. Her expertise also includes drafting and advising on contracts of employment, company policies, procedures and handbooks.

 





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