Flexible working after maternity leave: your rights
Although no one has a legal right to flexible working, you may, if you have dependent children or other people for whom you have caring responsibilities, have a right to request to work flexibly.
If you do this, your employer will then have an obligation to give proper consideration to your request and only reject it for one of a number of prescribed reasons.
What is classified as flexible working?
- Different hours, e.g. going from full-time to part-time
- Different work times, e.g. a later start time to allow you to do the school run
- Compressed hours, e.g. working four longer days rather than five shorter ones
- Working from home
What criteria must you fulfill to make a request?
- Have or expect to have responsibility for bringing up a child who is under the age of 17 when you make your request (or under age 18 if disabled), or
- Be caring for an adult who qualifies
- Be an employee and not an 'employee shareholder' who has signed away various employment rights (you will know if you are one of these)
- Have worked for your employer for at least 26 weeks
- Not have made a flexible working application to that employer within the previous year
If you are applying with respect to a child, you must be making the request in order to care for them, and be either the mother; father; adopter; guardian; special guardian; foster parent or private foster carer of the child; a person in whose favour a residence order is in force regarding the child; or the spouse, civil partner or cohabitee of such a person.
What you have to do
- Make your request in writing
- Say that it is a request for flexible working
- Specify the change you are asking for
- Give a date when you would like to start the new work pattern
- Explain what effect, if any, you think the change will have on your employer and how that effect could be dealt with
- Explain the basis on which you are entitled to make the request (e.g. that you are the mother of a two-year-old who you need to drop at nursery)
If you work for a large-ish organisation, check to see whether there is a formal procedure your employer uses – they may have their own application form and guidance.
It's worth putting some real effort into thinking how your request could practically be accommodated. Are you aware of someone else who would like to do your old hours? Are there affordable technologies which will make home working realistic? You are less likely to get turned down if you anticipate objections and suggest solutions.
What your employer has to do
- Consider your request
- Give you an opportunity to meet to discuss your request.
This meeting should be offered within 28 days of you making the request, unless your employer simply agrees to the request on paper, in which case they can just send you a confirmation letter specifying what the change to your working pattern is and when it will begin.
The meeting should take place at a mutually convenient time, and you may bring a colleague to the meeting to support you, although not to answer questions on your behalf.
Within two weeks of the meeting, your employer must either agree your request or explain why it is not agreed, setting out the reasons.
Reasons your employer can refuse your request
- The burden of additional costs
- Detrimental effect on ability to meet customer demand
- Inability to re-organise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficienct amount of work to do during the periods the employee proposes to work
- Planned structural changes
If you are not satisfied with the reasons given, you have a right to appeal, in writing, within 14 days of the notice of refusal, by way of a dated document setting out grounds for your appeal.
Your employer should hold an appeal meeting with you within 14 days of your appeal (unless the appeal has been permitted without a meeting and your employer informs you of that fact).
If a meeting is held, your employer should tell you the result within 14 days of the meeting. If it's a no, your employer must set out the reasons. If it's a yes, the letter should specify the agreed change and when you will start your new work pattern.
This is another chance to persuade your employer that the arrangement you are proposing can work, so again it's worth really thinking about the practicalities and arguing your case.
If you think your employer has messed up the procedure, based its decision on incorrect facts or treated you badly because you made an application, you may be able to bring a claim to an employment tribunal. But take advice quickly; there are strict time limits for claims of this sort (generally three months from the date of the appeal decision or from the date you were treated badly).
If you really think a refusal to allow you to work flexibly is unfair, it's worth getting some advice. Although the remedies available under the flexible working legislation are relatively limited, it is possible in some cases to claim sex discrimination, or even unfair dismissal if the refusal to allow you to change your work patterns had led to you leaving the job.
Natasha Joffe and Lydia Seymour. Please have a look at our disclaimer and bear in mind that the information provided is no substitute for specific advice on your individual case.