I have made a flexible working request to come back from maternity leave, but this has been declined on grounds of affecting quality and performance. Unfortunately, I cannot return without flexible working. What are my rights if I wanted to step down or take a more junior role within the company? If I were to successfully transfer to another, more junior role, would the annual leave I have accrued be paid at my management salary level? Could I do a Keeping in Touch [KIT] day for the new junior role or would I need to give notice for my current job and only do KIT days for that?
There are eight reasons for which an employer can reject a flexible working application and an impact upon quality and performance is one of those. Assuming your employer followed the process to at least consider the application and this was the result, you may not have any cause for action against your employer under flexible working legislation.
However, when considering applications, employers must also be alive to the possibility that the request might also be caught by the Equality Act if the reason you are requesting the change is for something related to a protected characteristic. Here this would be your sex and the fact that it continues to be the case that more women than men are unable to comply with a requirement to work full-time due to childcare issues. Your first option would be to appeal the decision if they have given you a right of appeal. If not, you could raise a grievance focusing on how that decision will impact upon you as a woman with childcare responsibilities.
If your employer has in fact considered your request carefully and the decision reached that the role must be full time was reasonable in all the circumstances (i.e. there is genuinely no way of splitting the role via a job share or reassignment of duties, for instance), they may be justified in refusing your request. If you can show that they haven’t in fact considered things properly, you may then be in a position to challenge this decision.
If you accept the decision on your current role and successfully apply for a more junior position in the business and you take your accrued annual leave after you move into that role, your holidays will almost certainly be paid at the lower rate. If you were to resign instead of moving into an alternative role, the company would have to pay you in lieu of your accrued holiday and it would be paid at your existing salary level. The other possibility might be that you reach an agreement with them that you take all your accrued holiday at the end of your period of maternity leave with your new role starting at the end of those holidays so that you are paid your existing salary for the holiday.
With regard to KIT days, this is a matter of agreement being reached between you and your employer. This is both in terms of the role you would fulfil and the pay you would receive on those KIT days.
I hope that assists you in preparing for your return from maternity leave.
*Marie Horner is an experienced senior employment law specialist at ALT Legal in Wetherby.