Q: We have a manager currently on maternity leave returning to work after 39 weeks (when SMP runs out) but she has requested that she returns to work part time. We are concerned as we feel it may harm the business but equally we want to be fair to her. What should we do?
A: ALL employees now have a statutory right to ask their employer for a change to their contractual terms and conditions of employment to work flexibly (i.e. a flexible working request) provided they have worked for their employer for 26 weeks continuously at the date the application is made.
An employee can only make one such statutory request in any 12-month period.
Employers have the right to refuse any such requests on justified and reasonable business grounds e.g.
- extra costs that will damage the business
- the work can’t be reorganised among other staff
- people can’t be recruited to do the work
- flexible working will affect quality and performance
- the business won’t be able to meet customer demand
- there’s a lack of work to do during the proposed working times
- the business is planning changes to the workforce
Regarding considering the request you have a duty to consider all requests in a reasonable manner.
You should therefore carefully consider the benefits of the flexible working request for the employee and the business and weigh these against any potential adverse business impact of implementing the changes.
Remember, you are under no statutory obligation to grant a request to work flexibly. However, you should be careful as an indirect sex discrimination claim could potentially be raised by her if the reason given for refusing part-time employment is not legally justifiable.
Be open minded - what she is seeking may actually benefit your organisation in ways you perhaps haven’t thought of yet but you can’t decide anything until you know on exactly what part time basis she wants to return on. Contact her and ask her for her formal request for flexible working in writing
- The right to request is open to all employees with 26-week service eligibility period
- Employers must deal with requests in a reasonable manner and within 3 months
- Employers have statutory duty to consider applications
- Once the change is agreed it becomes a permanent change to the contract of employment.
- There is no right of appeal (but Acas recommends consideration of appeals as good practice)
- There is no automatic right of accompaniment (but Acas recommends consideration of allowing a companion)
- Only one application can be made in a 12-month period.