Role given to maternity cover. Is this right? Ask the expert

I am coming to the end of my maternity leave and put in a request to my employer for flexible working. It was nothing out of the ordinary – 4 days a week (instead of 5) and I stated that I must leave on time every evening (5pm) to be able to get to nursery on time. My request was declined by my employer because they felt that given the seniority of the role, it could not be done in 4 days and they would require me to work late on a lot of occasions. Although disappointed, I had no choice to accept this and resign. The job was then immediately given to my maternity cover, who works far away from the office and leaves every day at 5pm, which slightly conflicts with one of the reasons they gave me. My main question is – are they entitled to immediately ‘give’ the role to the maternity cover without advertising it (internally or externally)? I know of other people who wanted to go for the role, but were not given the option?

I understand that you submitted a flexible working request and requested to work four days rather than five. This was refused and as a consequence, you resigned from your position. Your job was given to your maternity cover. You queried whether your job could just be given to your maternity cover without it being advertised.

In relation to your flexible working request, your previous employer can only reject this based on eight specific grounds, which are as follows: –

– 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.

Your previous employer also should have followed a set procedure when dealing with the flexible working request. This involves, for example, meeting with you within 28 days of receiving your application and providing you with an outcome within 14 days of the meeting. If your previous employer did not comply with the prescribed timetable and/or used a business ground for rejecting the application, which is not included in the list above, you may have a claim under the flexible working regulations. Any such claim should be presented to the tribunal within three months of the procedural breach or within three months of the date on which you were notified of the appeal decision. You may also have a sex discrimination claim based on your previous employer’s rejection of your flexible working application. This would depend on its reasoning for rejecting the application and how it has treated similar cases. Finally, given that you resigned in response to your previous employer’s actions, you may also have a constructive unfair dismissal claim, if you can argue that its actions constituted a fundamental breach of your contract of employment. Such a claim must be brought within three months of your resignation, Please note that before bringing any such claims, you would need to follow the Acas pre-claim procedures.

With regards to your query relating to the advertising of your position, there is no general duty for your employer to advertise your job internally or externally. However, your previous employer must not discriminate in its arrangements for advertising a job or in not advertising the job and a practice of recruiting without advertising can lead to discrimination because certain groups may be excluded. I would need to know more about the individual who was awarded the position and those who were excluded to review whether your previous employer may be operating a discriminatory practice. Any claim for discrimination must also be brought within three months of the act of discrimination.


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