Analysis: how must an employer deal with a flexible working request for a woman returning from maternity leave?
In a recent post on the case of Smith v Gleacher Shacklock LLP we examined a decision of the Employment Tribunal whereby the rejection of a request for flexible working by a mother returning to work after maternity leave was not found to be indirect discrimination. We therefore thought that it would be appropriate to explain what an employer’s responsibilities are regarding requests for flexible working from women returning to work from maternity leave. Please note that this article doesn’t examine the exact procedure utilised but a broad outline of what is to be expected.
The law on flexible working requests
From 30 June 2014 all employees with at least 26 weeks’ continuous employment can make a request for flexible working (under a combination of the Employment Rights Act 1996 and Flexible Working Regulations 2014 (SI 2014/1398)). However, the legislation does not lay down the exact procedure that the employer needs to use in dealing with a flexible working request: guidance on the employer and employee’s responsibilities are contained in the following ACAS documents:
- The Statutory Code of Practice, Handling in a reasonable manner requests to work flexibly
- The right to request flexible working: an ACAS Guide
These documents are invaluable guidance and it is highly recommended that both employers and employees read them. We have outlined below the broad procedure that should be used when a woman returning from maternity leave makes a flexible working request (of course, this is also generally applicable in a wider categories of requests for flexible working):
- The employee’s request
- The employer’s responsibilities
- When an employee can make a complaint to the Employment Tribunal
The employee’s request
In order to make a request for flexible working an employee must make a written request for one (or more) of three things:
- A change to the hours that they work;
- A change to the times when they are required to work; and/or
- A change to the place of work (e.g. that they be able to work from home instead of in the office)
The employee must state in their written request that they are making an application under the statutory procedure and specify what change they want made. They must also specify whether they think that the change they are requesting would have any effect on their employer and, if so, how any such effect could be dealt with. The employee must also state the date of any previous application for flexible working that has been made.
The employer’s responsibilities
The employer must deal with any request for flexible working in a reasonable manner (for example, discussing the request with the employee, allowing them to be accompanied by a colleague, approaching the request in a reasonable manner, and allowing the employee to appeal the outcome of the request) and must notify the employee of its decision within three months of the date that the request is made (unless this deadline is extended by agreement). The employer can also only reject the employee’s request on one (or more) of the following grounds:
- 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; and/or
- planned structural changes.
When an employee can make a complaint to the Employment Tribunal
An employee can bring a claim to the Employment Tribunal under the relevant statute if:
- The employer failed to deal with their application in a reasonable manner;
- The employer failed to notify them of the decision on their application within the decision period;
- The employer rejected the application for a reason other than one of the statutory grounds;
- The employer’s decision to reject the application was based on incorrect facts; and/or
- The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.
A claim under the relevant statute cannot be brought until the employer has notified the employee of its decision on their request or until the ‘decision period’ (three months or whatever else is agreed) comes to an end.
However, there is also an interrelationship between requests for flexible working and discrimination claims: a refusal of such a request could, for example, constitute pregnancy and maternity discrimination or indirect sex discrimination (again, see Smith v Gleacher Shacklock LLP for an example of an unsuccessful claim for indirect discrimination at first instance).