A member of staff returning from maternity leave has made a request for flexible working to reduce the number of days worked from five per week to two. We invited the employee into the office for a meeting and we have refused her
request on the grounds that the proposed new hours will have a negative impact on the quality of service we provide, that the person fulfilling the job role needs to be contactable during normal office hours and that a job share would
be too costly for our organisation in terms of salary and additional management hours. She has stated that she is going to appeal our decision; are we liable for a sex discrimination claim or be taken to an Employment Tribunal?
Requests for flexible working are very common among employees returning from maternity leave. Eligible employees have the right to request flexible working, and by law, employers must take all requests seriously.
The Employment Act, April 2003, sets out clear procedures that employers are required to follow, which includes the following:
Employers who refuse the right to flexible working must state at least two of the eight specified legal business reasons that are permitted for rejecting a request. These include: 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 or planned structural changes. These must be provided to the employee, in writing, which also states their right to appeal the decision.
In this case, you have stated three of the above reasons, and have therefore met the grounds for a refusal. An appeal, however, could look at how genuine the reasons stated may be and whether or not these could be overcome by alternative arrangements.
There would not be grounds for a claim if your decision can be objectively justified. However, it is important to consider any recommendations put forward by the employee who may wish to prove that they could perform the job role to the same standard within the proposed reduced hours – or they may be open to a lesser reduction of hours – four or three days rather than two days per week.
Employees have a legal right to appeal your decision on two grounds: to bring some additional information to the table that may not have been apparent during the initial decision, or to challenge a fact that the employer gave in their business grounds for the rejection. Employees cannot appeal if they simply disagree with your decisions, they must be able to substantiate their challenge.
As long as employers follow the procedures outlined in the Employment Act, they have genuine grounds for refusal and that the employee does not suffer any detriment based on their application, (such as be refused a promotion or pay rise or negative behaviour in the office) then there should be no grounds for a complaint to an Employment Tribunal.
For further information or advice, please call the ELAS Advice Team on 0161 785 2000.