Worried about flexible working being denied: ask the expert

I am currently on my maternity leave and will probably have to return to work in three months. The worry I am having is that there have been a few women pregnant and returning to work at the same time and all have requested flexible working with some of them going part time and working from home a day a week. One girl has recently returned to work and was refused flexible working on the basis that she was not as senior as the other women and could not work unsupervised and with a baby at home with her. There have been rumours that the company is regretting being so flexible with the other mothers as there are now so many of us requesting flexible working and they are now cracking down on it. I was planning to return four days a week (I was previously working a five-day week in the office) and asking to work from home one day a week. I am worried because I am at the same level as the girl that was refused. However, I did work from home one day a week towards the end of my pregnancy. Also I am now a single mother as my husband just left me so it is even more important that I go back flexibly as it is just me looking after the baby and I want to limit the cost of childcare. I am going to have to prepare my written notice soon and was wondering if you had any suggestions to combat some of these issues as I am really worried that I will be treated unfairly over this as I have missed the boat on the flexible working.

Maternity Leave

 

There are two ways to make an application for flexible working. You can follow the formal procedure set out under statute or you can make an informal request. You refer in your query to the fact that you are going to prepare a written notice of your request and I presume therefore that your employer has a set flexible working policy/procedure which should be followed. This should comply with the statutory flexible working procedure. My advice in any event is that it is best for you to follow the formal flexible working request procedure. Your request must be made in writing and dated and must:

State that the application is being made under the statutory right to request flexible working;

Detail the changes requested and the date it is proposed that such changes should become effective;

Explain what effects you consider such change will have on the Company and how these may be dealt with;

Confirm the relationship between you and the child.

Taking your concerns into account, the best way to approach your request is to set out the above and also consider in detail the reasons why your request may be refused and to make suggestions as to ways to combat the potential problems.

There are set statutory grounds upon which your employer can refuse your application. A refusal notice must set out which ground(s) apply and provide a sufficient explanation as to why these apply. The statutory grounds are:

1. The burden of additional costs

2. Detrimental effect on ability to meet customer demand

3. Inability to re-organise work among existing staff

4. Inability to recruit additional staff

5. Detrimental impact on quality

6. Detrimental impact on performance

7. Insufficiency of work during the periods the employee proposes to work

8. Planned structural changes

From the information you have provided, it seems that grounds 3, 5 and / or 6 would be the most applicable given the fact that many of your co-workers are working flexible hours. However, other grounds could also be relevant.

You mention that you worked from home for one day a week towards the end of your pregnancy. If this worked successfully, this is something you should focus on within your written request. For example, you could explain how you were able to keep in touch with the office, the fact that you still managed to meet deadlines, etc. The more information you provide, the more difficult it will be for your employer to successfully establish one of the business grounds. If you are flexible as to which day you would like to work from home, this would also be beneficial. You could look at the days on which your colleagues are working from home and try to avoid these days. You would therefore be able to state, for example, “nobody else within my department works from home on a Tuesday; therefore I suggest that working from home on this day would have the least detrimental effect on the business.”

With regards to the circumstances surrounding the fact that your husband has recently left you, guidance states that your employer should focus on the business needs rather than upon your personal circumstances. However, you could still mention this if you feel that your employer may take a more sympathetic view.

After lodging a formal request to work flexibly, your employer must arrange a meeting with you within 28 days to discuss the same. There are then set timescales in which he must provide a decision.

If your request is refused on one of the business grounds stated above, you will have the right to appeal. Under the statutory procedure, you must appeal within 14 days. You should also check your employer’s policy for any time limits that apply. You should refer to the reasons for refusal and try to offer counter-arguments as to how you feel that the issues could be resolved.

Whilst it is unfortunate that you have been the last to apply for flexible working, it is still a valid argument for the employer to state that there are now too many employees working part-time hours / working from home etc to be able to allow another without resulting in a detrimental impact upon the business.

If, by the end of the procedure, your request has been refused and you do not believe that the employer has properly established a business ground, you could have potential claims for constructive unfair dismissal, breach of the statutory flexible working procedure and / or sex discrimination.




Comments [5]

  • TJ says:

    I have no written agreement to work from home but since 2013 I have been working one day a week from home with verbal agreement from my previous manager. I now have a new manager who is asking me to submit a flexible working request. I have line management for two people. Is my working pattern now not custom and practice? I need to work from home to be able to take my child to class after 5pm.

  • Anonymous says:

    I'm a single parent. I work 9-5 Monday through Friday and my son plays sports. I asked my employer if I could take a later lunch and informed her I would need to take my son to the airport, she seems as though she has a problem with that. Her response was we will discuss your other schedule needs. Really, my first ministry is to my home. I'm entitled to my lunch and you can't be flexible for four days so I'm able to get my son to his games on time. I have been with the agency almost two years. What are my rights?

    Editor: Is this just a temporary issue? It seems very inflexible – are there any particular reasons she is giving to do with business needs which would mean you couldn't do it and is there any way to reach a compromise? What does she mean by 'your other schedule needs'?

  • Anonymous says:

    Hi I want to submit a second application for flex working following my 1st (made on 2 May 2013) which was agreed. my son is moving from private nursery to start reception at school in september 2014. I currently work 4 days part time mornings and want to go down to 3 days and work longer hours because my holidays granted by work will not cover the whole of the school holiday period of 13 weeks a year and I struggle with childcare due to lack of family cover and I am a lone parent so my childcare costs are more expensive during school holidays as I have to put my son in holiday club so I need to reduce my days – I also have to look to the future as this is long term until my son is independent enough to take care of himself whilst I work then I could increase my hours and days – would this be an agreeable set of requirements to reduce my days by my employer ? I would like to submit my application around 5 May 2014 is this okay? One of the days is really busy that I would like to drop? Thanks

    Editor: You will have to negotiate this with your manager [the flexible working process is a negotiation], but try to put across why this will work both for them and for you and show that you have thought it through from their perspective too.

  • Anonymous says:

    Can you advise if its 28 calendar days or 28 working days the employer must respond by?

    Editor: It is 28 calendar days.

  • Anonymous says:

    Thank you to the kind lady who called me back from Slater Heelis today – she gave me some sound advice and was very courteous at a time of great stress. Thank you very much!


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