Maternity leave rights

Lydia Seymour and Natasha JoffeBarristers from Outer Temple Chambers Lydia Seymour and Natasha Joffe, specialists in employment and discrimination law, answer your questions on navigating maternity leave rights.

Redundancy and restructuring | Changes to job description | Hours and flexible working | Statutory maternity pay | Other | Where to go for further advice

 


Redundancy and restructuring:

Q. Oodsigma: It's common in my organisation to restructure. I was given a different job on my return from maternity leave as my previous job had disappeared, but there were other jobs I might have applied for had I known about them. I was told that my manager should have been updating me but my manager was moved and my new one only took me on a few weeks before I returned, so I was manager-less for a couple of months. Outer Temple Chambers

Internal jobs are advertised via internal email, which I no longer have access to, and I have requested updates from my supervisor but so far have only had brief conversations while I was off sick and nothing in the month I've been on maternity. I am also reluctant to nag them for job details because if I was unsuccessful, I'd prefer to return to my current post. What's the legal stance on receiving information on jobs available and restructures whilst off?

"Your employer is not allowed to treat you less favourably because you are on maternity leave."

A. Lydia and Natasha: Your employer is not allowed to treat you less favourably because you are on maternity leave. So if other people are being provided with information on available jobs and restructuring, and you have asked to have that information, then it should be provided to you. If it isn't, and you lose out because of that, you may have a claim that you have been discriminated against on the grounds of maternity.

Clearly though, what you really want is to obtain the information, rather than to bring a claim against your employer, so the first step would be to ask again (preferably in writing), explaining that you don't want to be placed at any disadvantage by reason of your maternity leave, so could they please send all relevant information to you.

As you say that you don't want to nag for job details, you may want to make the request for information relatively broad - ie, include information about the restructure, alternative jobs and any other important changes relevant to your role/team.

Q. princesssugar: I am currently on maternity leave and have been told that our three-person department is looking at a redundancy. There was the same issue last year but they decided not to make any one redundant because two people were due to go on maternity leave and one member left. Two full-time maternity covers and a third permanent full-timer were recruited to a department that was already overstaffed. I think they should have recruited a part-timer, which would have solved the issue. The new full-timer is on a lower pay grade. Did they do anything wrong? Also I am not due back to work until after the decision, do I have any protection because I'm on maternity leave?

A. Lydia and Natasha: In terms of your first question - whether your employer did anything wrong by appointing a permanent full-timer - it is unlikely that there was anything unlawful about that decision. As we understand the position from your question, there were three people in the team: one left and was replaced with a permanent full-time employee (at a lower salary), and two went on maternity leave and were replaced by maternity covers. This was in the context of a possible redundancy situation, but in fact no one was ultimately made redundant.

If that is correct, then in the absence of any other factors, your employer was entitled to appoint the full-time replacement. As to your second question, yes, you do have protection as a result of being on maternity leave. There are three basic aspects of this protection. First, you are entitled to be kept informed of what is going on, and provided with as much information and opportunity to comment as your colleagues who are not on maternity leave. Sometimes employers will say that they didn't send information in these circumstances because they didn't want to disturb your maternity leave, so it is a good idea to write to your employer to say that you would like to receive that information.

Second, your employer is not allowed to treat you less favourably because of your pregnancy and maternity leave. So, for example, if there is a redundancy selection procedure, then the selection criteria cannot be skewed against people on maternity leave, and cannot take account of pregnancy-related absence. Equally, it would be unlawful if your employer used the redundancy exercise as an excuse to get rid of you because you were on maternity leave.

Third, if your job is made redundant during the first 52 weeks of your maternity leave, and there is a suitable alternative vacancy in the business you work for (or an associated business) then you are entitled to be offered that role.

Q. suresure: I am returning from a year's maternity leave on Monday. While I have been away, the team got a new manager and she restructured the team. I no longer report to her, but to someone below her who used to be my peer. I was 'consulted' about the change but this consisted of a telephone call with information about the change a few hours beforehand. I expressed my negative views about the change of superior, and the fact that I felt that my job description was changed to reflect a simplified and more junior job. The manager agreed to change the job title and to consider my views.

A second phone call a week or two later stated that the move would go ahead. The money remains the same. Was the organisation allowed to do this? I feel demoted. And I feel it was poorly handled given that I was dealing with a seriously ill child and the death of my father throughout. At no time did I say I accepted the move, but Human Resources have sent forms asking me to sign saying that I agree with the change. If I sign them, will I lose any right of legal appeal?

A. Lydia and Natasha: The first issue is why your manager has restructured the team in this way. If she did it because you were on maternity leave, then this may have been unlawful discrimination. It is also possible that you have been discriminated against in the way in which you were consulted, for example if others in the team got better information and more time to respond to consultation. Even if the restructuring had nothing to do with your maternity leave, you have certain rights on your return from maternity leave.

"After additional maternity leave (ie the second six months of maternity leave) you are entitled to return to your old job unless your employer can show it is not 'reasonably practicable' for you to do so."

After additional maternity leave (ie the second six months of maternity leave) you are entitled to return to your old job unless your employer can show it is not 'reasonably practicable' for you to do so. If that is the case, your employer will have to offer you a job that is 'suitable' and 'appropriate'. So there are some complicated issues here:
-is the job you are going back to sufficiently different from the job you were in that it can be said to be a different job altogether?

A tribunal would look at a lot of different factors and the fact that your pay had remained the same would not be determinative.


  • Can your employer show it was not 'reasonably practicable' for you to go back to your old job?

  • Is the lower level role 'suitable' and 'appropriate'?

It may well not be, particularly if it is a simplified role and you have moved down the reporting chain. Another possibility is that, if challenged, your employer would say your old role was redundant. The question would then be whether the role you have been offered is a suitable alternative vacancy.

This is a very difficult issue and it must be particularly difficult and stressful when you have had so much to cope with at home. You really need urgent and more detailed advice. See the end of this Q&A for some suggestions about sources of advice.

Q. cat88: I work part-time in the public sector. One year before the start of my maternity leave, we were reorganised into a new department. My job still existed with the same role and line manager, but I was now part of a bigger team with others on a different job description and the same salary. Of the three of us who moved in, one (full timer) was offered a secondment very quickly out of team, the other (part timer) was recently offered a secondment out of the team, leaving me as the only part-time person, and only person left on this job description.

When I went on maternity leave my job was advertised as full time and the job description used was not mine, but the generic for others in the team. I want to go back after nine months but am concerned I may be asked to do it full time since my cover did, and also to do the generic job description which is less strategic than mine. I want to do my job description on a part-time basis as before, but am unsure if I can insist on this. Also, if offered a secondment out of the team, do I still have the right to return to this post, even if I was on maternity leave between leaving this post and starting the secondment. I work directly with senior managers and am sure they will be used to having this post filled on a full-time basis and not keen to have someone back part time.

A. Lydia and Natasha: Broadly speaking, after nine months (ordinary maternity leave plus some additional maternity leave) you are entitled to return to the job which you had on 'not less favourable' terms and conditions. The only grounds on which your employer can refuse this if it is not 'reasonably practicable' or your role is redundant, in which case your employer should offer you a suitable alternative job which is appropriate for you to do.

It is certainly not sufficient grounds to refuse to allow you to return to work part-time that your managers are 'not keen'. 

Have a look at our response to MamaOtis for some more detail about these issues.

As far as secondment is concerned, it sounds like you are asking about what would happen if you voluntarily took a secondment. Here the answer is likely to be found in your employer's secondment policy. It may be that the policy provides for employees to return to their substantive roles after secondment. If it does, the fact that you have not been in your substantive role since before your maternity leave would make no difference to your entitlement to return and it would probably be unlawful discrimination for your employer to treat you differently in this respect because of your maternity leave. You really need to look at the terms of any secondment opportunity though and take advice before you make any decisions. Your employer's Human Resources department may be able to help.

Q. owlface: I have worked on one team within my department for one year and on my current team within the same department for three years. Someone from my current team has been seconded to my role while I am on maternity leave; this person was junior to me and there will not be someone doing their role. My boss said when I return it may not be to the same team if someone at my level is no longer required on that team. This seems discriminatory, as although it is normal and a requirement of the job to move teams within the department for the needs of the business, why should it be me who has to move just because I am not currently at work to keep my place - there are several other people at my level on my team. I don't believe the person seconded to my role would move teams during my maternity leave, the change would happen when I return and I can't see how the needs of the business would suddenly change on this as yet unspecified date. I do not want to move teams as my team specialises in a complex area that interests me. Where do I stand?

A. Lydia and Natasha: The starting point here, as with some of the other questioners, is that you have a right to return to your old role. More precisely:

  • If you return to work during the first 26 weeks of your maternity leave you are entitled to return to your old role unless it is redundant;
  • If you return to work after between 26 and 52 weeks of maternity leave you are entitled to return to your old role unless it is redundant or it is "not reasonably practicable" for you to do so.

Looked at one way, what your boss has said is simply that if your role is no longer required (ie your role is redundant) then you will not be able to return to it. That is not unlawful.



However, the position is not as simple as that, for three reasons:


First, because the truth of the situation may not be that someone of your seniority is not required, but that your employer simply prefers the person who has been seconded to your role to carry on. If that is the case, there is not a true redundancy situation, and if you are not allowed to return to your role then this would be both a failure to allow you to return to your role and potentially discrimination on the grounds of pregnancy/maternity. 



Second, it is odd that your boss has made these comments before you are actually ready to return, and hence before your employer could possibly know what the position will be when you return, and that may indicate that s/he is discriminating against you on the grounds of maternity.



Third, as you say, even if there is genuine redundancy situation, and one fewer person at your level of seniority is needed, then your employer should undertake a fair redundancy selection process in which you have the rights set out in the answer to Princesssugar's question.

Insofar as your boss is suggesting that any redundancy outcome has been prejudged – ie that it is you who would be displaced, then that would be likely to be both discriminatory and unfair.

Q. tiggerishtom: After telling the company I have worked for for 13 years that I was pregnant, they have decided to close the office and make me redundant. What do I have to watch out for in the negotiations that are about to start, and what am I entitled to? For example, am I entitled to my full year's worth of holiday paid in lieu?

A. Lydia and Natasha: It's a little hard to tell from your question exactly what your precise situation is. It's not clear why your company is closing the office or whether there are other places you can work within the company. It almost sounds from your question as if there is a connection between you telling your employer you are pregnant and the company deciding to close the office. This seems unlikely unless it's a very small office, but if it were the case, it would be unlawful discrimination. You are entitled during your pregnancy to have the same prospects of being redeployed as anyone else who is at risk of redundancy, so you should be being consulted about what redeployment opportunities there might be.

"If you believed you were not considered for any such opportunity because of your pregnancy, you might be able to bring a claim for unlawful discrimination and unfair dismissal."

If you believed you were not considered for any such opportunity because of your pregnancy, you might be able to bring a claim for unlawful discrimination and unfair dismissal.

If you are a member of a trade union, it would be useful to get a union representative involved in the negotiations about your redundancy. The other issue for you is what your financial entitlements are if you are made redundant. If you are made redundant before your maternity leave, you might not be entitled to Statutory Maternity Pay (SMP).

In order to be entitled to SMP, you generally have to be employed for at least part of the 15th week before the week that contains your due date. However, if your employer dismissed you to avoid paying SMP before the 15th week, you would still be entitled to it. You do not say how far along in pregnancy you are or when your employer is proposing that your redundancy takes effect but it seems that an important part of what you want to achieve in any negotiation is the continuation of your employment until at least the 15th week before your due date.

If your employer is trying to terminate your employment before that date, this may suggest that your pregnancy and a desire not to pay SMP are at least part of the reason for your redundancy. That would be unfair dismissal and unlawful pregnancy discrimination. However, given that you have been employed for 13 years, you have a statutory right to 12 weeks' notice of termination of your employment (possibly more if your employment contract allows for more), so hopefully this will take you up to the 15th week before your due date.

Even if you are not entitled to SMP, you are likely to be entitled to Statutory Maternity Allowance. Have a look at the GOV.UK and Department for Work and Pensions websites for more details on Maternity Allowance.

So far as accrued annual leave is concerned, if you were not made redundant and took your maternity leave in the normal way, you would probably be entitled to take the annual leave you would have accrued during your maternity leave after your maternity leave. This is not absolutely certain because it depends on the interpretation of some complicated European law but many employers take the view that it is safer to assume that employees are entitled to take accrued annual leave after maternity leave.

However, if you are made redundant before your maternity leave, you will no longer be employed during the maternity leave and therefore no longer be accruing a right to annual leave. So you are not entitled to pay in lieu of your annual leave if you are dismissed before your maternity leave starts. That said, if your employer is looking to achieve an amicable agreement with you about your redundancy, it is possible that this is something the company would agree to pay, so you may wish to ask for it as part of a redundancy package, together with statutory redundancy pay and any contractual redundancy pay which your employer may provide.

Q. Shootingstarsandcomets: Whilst on maternity leave, my job was made redundant following a reshuffle. I wasn't told until I asked to go in to see them about returning to work. They said that they would try to offer me something else, but they won't know what until nearer the time I'm due to return (September).

I've asked to go part-time, but how long do they have to decide? I've got to work out childcare and, if they won't allow me to go part time, decide what I want to do. I don't want them to turn around in August and say I can't go part-time because there is only a full-time job available.

A. Lydia and Natasha: The first issue here is getting your employer to commit to providing you with a new role, as they are unlikely to be prepared to agree to part-time working until the new role is identified. You may want to ask for information about the reshuffle, and understand the basis upon which your role was selected for redundancy in order to be sure that the decision was fair.

Assuming that you do not wish to challenge the decision to make your role redundant, you need to be provided with information about other jobs with your employer (and any associated employer) as they are obliged to offer you any suitable vacancy that exists. See also our answer to Princesssugar's question.

The issue of trying to get them to make a decision in good time for you to sort out childcare is more difficult. Until you are due to return they are not obliged to provide you with a role, and there is no legal mechanism for forcing them to decide by a particular date. All you can really do is to ask them to decide as soon as possible and give them any information that they might need.

"Although it is fine to say that you would prefer to work part time when you return, your legal right is to return to your old role, so if you say that you are only prepared to work part time you will effectively be giving up your right to return."

Once they have made that decision, then you can make a flexible working request - see the answer to Bluestorm's question for details. Do note that although it is fine to say that you would prefer to work part time when you return, your legal right is to return to your old role (or a suitable alternative if your role is redundant or it is not reasonably practicable for you to return), so if you say that you are only prepared to work part time you will effectively be giving up your right to return.

Q. Buntystninians: My situation is very similar to suresure: restructuring means that on return from maternity leave I've been demoted to a job with lower status and narrower scope, though the pay and benefits stay the same. The department insists it is a suitable alternative role. I now report to the person who covered my maternity leave, and she is more senior but they told me - when appointing her to cover my role - not to worry about that. They also appointed her permanently into our department rather than a maternity cover secondment. She now does my old role in all but job title.

A. Lydia and Natasha: Your situation does sound similar to suresure's and the principles outlined in relation to her situation would apply to yours. In your case, however, there does seem to be evidence that your employer has deliberately appointed someone to your role on a permanent basis because you took maternity leave.

"The time limits are generally three months from the act or failure to act you are complaining about (or the last in a series of acts/omissions) and we would urge you to seek detailed advice as a matter of urgency."

This would be unlawful discrimination and you might be able to bring a claim to an employment tribunal. What you do not say in your question is when this all happened and so it is not clear whether you would be within the time limits for bringing an employment tribunal claim (if this is what you decided to do). The time limits are generally three months from the act or failure to act you are complaining about (or the last in a series of acts/omissions) and we would urge you to seek detailed advice as a matter of urgency. See the suggestions at the end of the Q&A.

 

Changes to job description

Q. MTBMummy: Prior to falling pregnant, I worked as a consultant that was deployed by my company to others. When I returned to work full-time after six months' leave, I suddenly wasn't being assigned any work. The work distribution was handled by my manager, but I took the initiative and spoke to the sales guys to get them to sell my skills in particular, and even though I'd engaged with the customers from the start of the sales process I was taken off the actual work by my manager and it was given to another colleague. So while my base salary didn't change, I wasn't earning any commission, and my salary took a significant hit.

When I tried raising the issue with my manager and Human Resources, my manager said he had no confidence in my abilities now that I was a mum, and Human Resources said I was being paranoid. I was then disciplined by my manager because I wasn't doing any chargeable work, even though he was the one who distributed our work load. I disputed this, but got no support from Human Resources even though I had no control over getting the work. In the end I decided to leave, as I was so unhappy. Is what they did legal?

A. Lydia and Natasha: The first question is when did you leave your job? Any claims you might be able to make to an employment tribunal will have a three-month time limit, probably in your case beginning with the date you left (so, for example, if you left your job on 10 March, the last day for getting the claim to the tribunal is likely to be 9 June). If you left your job within the last three months (or even if it was a bit longer than that, as it is sometimes possible to get an extension of time limits), we suggest you look into getting some detailed help from the sources we outline at the end of this Q&A as soon as possible.

On the basis of the situation you have described, it sounds like you may have been the victim of sex discrimination as your manager did not assign you work because you are now a mother (and in fact explicitly said so, although he might deny saying it if you did bring a claim to an employment tribunal) and that this led to a drop in your income and to disciplinary proceedings.

This would be a type of direct sex discrimination and is unlawful. Also, if you left your job because you were not getting work and you were unfairly disciplined, you would potentially be able to bring a claim for constructive unfair dismissal as well as a claim for sex discrimination. If you wish to bring a claim, you need to take action as quickly as you can, because of the time limits.

"It is worth putting out feelers to see if there is anyone who will feel able to support you by giving evidence if you bring a tribunal claim."

It would be helpful to keep hold of any relevant documents you have and write down as much as you can about what happened whilst it is still reasonably fresh in your mind. If you kept any kind of diary of the incidents, make sure you keep that somewhere safe. Are there any ex-colleagues who can support your account of events? It is worth putting out feelers to see if there is anyone who will feel able to support you by giving evidence if you bring a tribunal claim. It is useful but not essential to have witnesses if you do bring a claim.

Q. Lucilulondon:  Shortly after I left on maternity leave, my boss and I had a meeting at which she told me she'd be recruiting a new director to head the team that I had previously led. They have since recruited someone to fill the post and I'm shortly to go back. The new director pretty much has my job description, and will now be attending the meetings I used to attend, doing the work I did, running the team, and even has my office (I'll now be open plan) and access to IT drives reserved for senior managers. Basically, I have been demoted but the money is still the same.

I didn't complain when she first told me this would happen, as I'd only just had my baby and my mind was elsewhere. I'm thinking I should request my job description is reviewed (as they haven't acknowledged that it must have changed). Should I do this? Or does this just formalise my demotion? I feel like I have been demoted and this will seriously affect my career - I took the job based in the fact I was in charge of the team and attended the senior meetings, and being made more junior in my work will affect my CV and my enjoyment of the work. What should I do next?

A. Lydia and Natasha: This is a very common, and very difficult situation. In formal terms, you start with the fact that you have the right to return to the job that you left. This means not simply that the pay has to be the same, but that the job has the same seniority and duties. There is a slight caveat to this if you have taken between 26 and 52 weeks of maternity leave (additional maternity leave) in that your employer can refuse to allow you to return to your old job if it is "not reasonably practicable" for you to go back. However, it is hard for employers to show that it is not reasonably practicable, and it will be even harder if your job is still there but being done by somebody else.



So the first issue is whether you have in fact been denied your right to return to your old job. The problem that you have is that this can often be a difficult question to answer, and an employer may well say that you have returned to the same role when it is clear to you that there have been fundamental changes. For the reasons you give it would not be sensible to ask for your job description to be reviewed, as this could be seen as an acceptance that you are not returning to your old role. Rather, you need to start from the position that you are entitled to your old role, but are not being allowed to perform it. So you could ask your employer to confirm that your job description hasn't changed, and then explain that you are not being allowed to perform that role and would like to do so.

Ultimately, though, if your employer does not allow you to go back to that role you will need to make a decision as to whether to stay or leave. Before doing this we would strongly suggest that you take specific legal advice (see Sources of free and paid-for legal advice below). Bear in mind that strict time limits apply to employment tribunal claims (generally three months less one day from the decision you are complaining about with only limited grounds on which to extend that time), and that it may be that time in your case starts to run from the day that you returned to work and were not allowed to return to your old role.



Q. EmmyLH: In a meeting before I took maternity leave, my manager informed me that the 10 months I was taking were 'excessive' and unusual for the industry I'm in (even though I'm a PA). Whilst on leave, a colleague told me the COO had told her in passing that if one of the other pregnant employees took a year's maternity, her career at the firm was over.


In my back to work interview, my line manager wasn't present and the COO told me I was being assigned a new job because it was unfair to disrupt my old team any further. Though on the same pay, I strongly feel the new job isn't as interesting or at the same level as the last job (they dispute this obviously). I tried to say I disagreed but was told I was being difficult and inflexible and I was employed as support and could be anywhere. Is this a good enough reason to assign me elsewhere? I strongly feel I am being 'punished' for taking so much leave. I also asked to bring forward my core hours by 30 minutes for the nursery pick up (I'm still full time) and this was also refused which was really hard for me to contest because I haven't worked with my new team and didn't feel I could put forward a good case (whereas it would have fitted really well with my old team).

The whole back-to-work interview was a disaster, lots of statements thrown around that were half-retracted later after they called a Human Resources Consultant. The experience was so awful I am looking for a new job because I feel forced out and 'redundant' as an employee. Even yesterday, I had to listen to two colleagues talking about how brilliant a candidate they interviewed was - the only downside being she had just had a baby. It's so depressing.

A. Lydia and Natasha: As you say, this is horribly depressing. From the information that you have given it sounds like you have been discriminated against on the grounds of pregnancy/maternity and sex by reason of the comments that have been made. Perhaps more importantly, it seems that you have been denied your right to return to your old role without any lawful reason, which is actionable in its own right as well as an act of sex or pregnancy/maternity discrimination.



Finally, you may have been indirectly discriminated against by reason of the refusal to allow you to change your hours. As things are so bad that you are planning to leave it is probably time to take legal advice on how best to protect your position (see Sources of free and paid-for legal advice below).

Please remember that strict time limits apply in the Employment Tribunal, and that the key date in your case may be the day of your back to work interview, so if you do wish to bring a claim it should be brought within three months of that date (ie if the interview was on 15 March 2013, for example, you need to have your claim at the Employment Tribunal no later than 14 June 2013). Time limits can be extended in certain circumstances, but it is far better to bring the claim in time if possible.

 

Hours and flexible working

Q. Bluestorm: I am a mum of three and I am currently on maternity leave. I am desperate to reduce my hours when I return to work, but I have been told that if I ask for a change of hours I will automatically be giving up my current rota and be forced to work a rota with night shifts. 
After my last period of maternity leave, I requested flexible working a reduction from 30 hours per week to 28 hours per week, which, after appeal, was granted, but my rota changed from no nightshifts to 22 over eight weeks, which was completely unworkable for me! I then had to go through a lengthy grievance process before my original 30-hour shift pattern was reinstated.

I have worked for the NHS for five years and have never worked a night shift. By requesting flexible working, would my employer legally be able to force me to accept a rota with night shifts? Ideally, I would like to reduce to 24 hours per week with no night shifts. I have several colleagues who work this type of shift pattern; would my employer be able to refuse my request? Thank you so much for any advice.

A. Lydia and Natasha: Organisations with complex shift patterns, like the NHS, do sometimes seem to struggle with how to accommodate flexible working requests. As a general rule, an employer is not allowed to take away your existing work pattern and shifts simply because you have made a request to work a different pattern. What is helpful is to be very clear about what pattern you are asking for - it sounds like the issue last time may have been that you asked for a reduction in hours without necessarily specifying that you could only work particular shifts. Your flexible working request should be absolutely clear that the pattern you are asking for is 24 hours with no night shifts and that you would prefer to retain your existing hours if they cannot accommodate this request in full (if this is the case).

"Make sure that your flexible working request complies with the requirements of the legislation."



Make sure that your flexible working request complies with the requirements of the legislation. The NHS has a specific form for flexible working applications which will make sure you include the following necessary information:


  • You must state that you are making an application for flexible working
  • You must specify the change applied for and the date on which it is proposed the change should become effective
  • You must explain what effect, if any, you think making the change applied for would have on the employer and how, in your opinion, any such effect might be dealt with. It's good to provide a reasonable amount of detail here; you want to persuade your employer that what you are asking for is feasible
  • You must explain how you meet, in respect of the child or other person to be cared for, the conditions as to relationship specified in the flexible working regulations (ie self-certify). In your case, you need to say you are the mother of children under the age of 17 and you have responsibility for bringing those children up.

Your application should be in writing and dated and should say when you made your previous request (there must be twelve months between requests). For those whose employers do not have a standard form, you can get one from the GOV.UK website. When you make a flexible working request, your employer can reject it on one of the following grounds:


  • Burden of additional costs

  • Detrimental effect on ability to meet customer demand

  • Inability to reorganise work among existing staff or inability to recruit additional staff

  • Detrimental impact on quality or detrimental impact on performance

  • Insufficiency of work during the periods the employee proposes to work
  • Planned structural changes


These are pretty broad grounds and employers can usually find a reason which fits into one of these categories if they want to turn down a flexible working request. 



Without knowing more about the situation at your workplace, it is difficult to tell whether any of the above would apply. The fact that you are aware of colleagues who work the pattern you wish to work may suggest that it is reasonable for your employer to allow you to do so, but it is also possible that, having allowed a certain number of employees to work particular patterns, an employer reaches a position where it cannot allow other employees to work similar patterns and still cover the work which needs to be done. 



If you make your application in the right way, your employer is under an obligation to have a meeting with you within 28 days (unless it simply agrees the request). This is a chance to discuss the logistics and perhaps convince your employer that the pattern you propose would be possible. If your employer decides to reject your request, you should get an answer within 14 days in writing with details of the reasons why. You then have a right to appeal the refusal. This should be done within 14 days of the decision, should be in writing and should be dated. It should set out your reasons for appealing.



Unless your employer allows the appeal without a meeting, it must have a hearing within 14 days of your notice of appeal. You are entitled to a written decision within 14 days after that hearing. All of these time limits can be extended if you agree to that. You are entitled to have a companion at any meetings, who must be a colleague and could be your trade union rep, if you have one.

If, ultimately, your request is refused after an appeal and you are unhappy with the reasons given, you may be able to make an application to the employment tribunal. You can only complain about the flexible working request process itself if:


  • The reason given for refusal is not one of the permitted grounds
  • Your employer's decision was based in incorrect facts

  • Your employer failed to follow the flexible working procedures set out in the regulations

However, if you find it difficult to work the hours that your employer requires because of childcare commitments it may also be possible that you would have an indirect sex discrimination claim. See our response to SepSep.



It is important to remember that a complaint to an employment tribunal has to be made within three months of your employer's decision on your appeal (or three months from a breach of the regulations, such as a failure to give you such a decision either at the initial stage or at the appeal stage or failure to hold a meeting with you as required by the procedure) so you need to take advice and act quickly. See the sources of advice detailed at the end of this Q&A.
 


Q. sepsep: I work for the NHS, and I do about 34 hours a week. I'm about to go on maternity leave. I indicated to my manager that I would want to reduce my hours when I return. She said this might not be possible as these hours would be 'lost' by the team. I know some colleagues (without children) have asked to reduce their hours recently and have been refused. Do I have more rights to push for reduced hours if it's due to having a baby?

"You are in a better position to request reduced hours if the reason for the request is that you have childcare responsibilities."

A. Lydia and Natasha: You are in a better position to request reduced hours if the reason for the request is that you have childcare responsibilities. This is because you have a legal right to request flexible working if you are caring for a child and also because refusing to allow you to work flexibly in this situation may also be indirect sex discrimination.

The first step is to make a flexible working request - the process for doing this and the bases upon which you might challenge the decision your employer makes are set out in answer to Bluestorm's question.

It can be difficult to decide exactly when to make a flexible working application. There is no point in making the application too long before you go back to work, as both your and your employer's situation may change whilst you are off. If you have not yet had your baby, you may not know exactly what hours you would like to work when you return to work. On the flip side, you will want to know what hours have been agreed before you do return, so do not want to leave it too late. It may be helpful to tell your employer that you are considering making an application and ask when it would prefer you to make it.



Once you have decided to go ahead, the form will ask you to set out what hours you would like to work and to consider what effect you think your proposed hours would have on your colleagues, as well as ways that any effects could be dealt with. It is worth thinking very carefully about this section of the form as it gives you a chance to put forward your view about what the change would mean for your team, as well as any ideas that you have for making it easier for people (eg you might be prepared to be contacted by telephone in emergencies on a day when you are not working, or to agree to come in occasionally on your day off if you have appropriate notice).


If your application is rejected, and you feel that it will be difficult for you to work full hours whilst complying with your childcare commitments, you may have a claim against your employer for indirect sex discrimination. Indirect sex discrimination occurs when a 'gender neutral' provision - like having to work particular hours - is applied to everyone, but a significantly greater proportion of women (or men) are put at a disadvantage by it.

The basic claim here would be that the refusal to allow staff to work reduced hours puts women generally at a disadvantage, because they are more likely to have primary childcare responsibility, and hence to be restricted in the hours that they can work. If you do wish to bring a claim either because you feel that the flexible working request was not carried out in accordance with the statutory framework, or for indirect sex discrimination, please bear in mind that strict time limits apply to employment tribunal claims - you will need specific advice in respect of your particular claim, but generally you need to bring your claim within three months of the decision you are unhappy about (so if a decision is made on 5 April, for example, you generally have until 4 July to bring a claim) and there are only limited grounds on which that time limit can be extended.

Q. MamaOtis: I am due to return to work in the next month after taking 52 weeks' maternity leave. My current contract of employment is four days a week, which I negotiated down from five following the birth of my first child four and a half years ago. This change to my working hours was made a permanent amendment to my contract at the time.

I have had minimal contact with my employer during my maternity leave. Upon phoning my manager three months prior to my return to work to arrange some KIT days, I was informed of changes to the business which my manager felt would make it impossible for me to continue in my role under my current contract of four days. He explained that our client wanted a full-time team so it was highly unlikely I'd be able to return to four days a week. I was told Human Resources would contact me to discuss my return to work further.

A month passed and no further contact, so I emailed Human Resources confirming my return date and asking for clarification on my role, particularly as I have already arranged childcare for my two small children based on me returning to work four days a week. This prompted a meeting where I was told I could either accept the full-time role or resign. It was explained to me that this is not a redundancy situation, as my role still exists although the scope and responsibilities of it are now very different. I would like to know if I have a case for pursuing a redundancy here. I certainly don't intend to resign, but could they dismiss me for not accepting the full-time role, and if so, would I have a case for unfair dismissal?

A. Lydia and Natasha: The starting point here is that if you are returning to work within (or at the end of) the first 52 weeks of maternity leave you have the right to return to your old role on the same terms and conditions unless either:

  • The role is redundant, or
  • It is not "reasonably practicable" for you to return to the old job


Your employer is saying that the role is not redundant, so they can only lawfully refuse to allow you to return to your four day a week role if it is not "reasonably practicable" for you to do so. That will depend on the reason why your employer has decided that the role cannot be done four days per week, with the onus on them to prove that it is not reasonably practicable for you to return on that basis. It will need a very good reason for the change.

Your employer would be taking a huge risk if it tries to dismiss you for refusing to come back on new terms and conditions, particularly if that decision was made during your maternity leave, as that could leave you with claims for: unfair dismissal; failing to allow you to return to work after maternity leave; sex discrimination (potentially both direct and indirect) and maternity discrimination.

If necessary, you may need to explain to your employer (including the Human Resources department) that you have the right to return to your old role, and that you wish to do so. If, having been informed of that, they nevertheless threaten to dismiss you if you don't work full time, then you will have to make a decision on whether to agree to the change or risk being dismissed and seek to bring a legal claim.

"If you are even considering a legal claim then you should think about taking legal advice (See Sources of free and paid for advice below)."

If you are even considering a legal claim then you should think about taking legal advice (see Sources of free and paid-for advice below). Please also bear in mind that strict time limits apply to bringing a claim in the employment tribunal. You will need to take specific advice in respect of your potential claim, but generally you need to bring your claim within three months of a dismissal or other decision you are unhappy about (so if a decision is made on 5 April, for example, you generally have until 4 July to bring a claim) and this time limit will only be extended in limited circumstances.

Q. Chesterado: My employer recently announced (without consulting us or changing our contracts) that the majority of our holidays will now be fixed, with a three-week shutdown in the summer, a week at Easter, and a week at Christmas.

As my holiday is pro rata due to part-time hours, when I return to work I will only have three days flexible holiday to take during the rest of the year, compared to full-time workers who will have over six, because a disproportionately higher amount of my annual leave will be fixed. This leaves me with almost no option to take time off at half-term etc. The argument that this is effectively discriminating against women on flexible working arrangements is falling on deaf ears. Is there any legal basis to argue against this other than voting with my feet and leaving?

A. Lydia and Natasha: There are a number of issues here, some related to your situation as a parent/part-timer, some not. The first question is whether your employer has made a 'unilateral change' to your employment contract (that is a change it has imposed upon you rather than one it has agreed with you). Whether this is happening depends on what your contract says about holidays. If the contract allows your employer some flexibility in fixing holidays, there may be no change to the contract.

If you are even considering leaving your job because of this, you really should take some specific advice. Although it is conceivable a contractual change of this sort would be considered to give rise to a constructive unfair dismissal, it will sometimes be considered fair for an employer to seek to impose a contractual change of this sort, if, for example, the employer has to shut the business down at certain times and require employees to take their holidays at those times in order to keep the business solvent.

The other possible claim you might have is some kind of indirect sex discrimination claim. What you would be saying is that, as more women than men work part-time because they have primary responsibility for children, they are disproportionately affected by rules such as the one your employer has imposed requiring all employees to take holidays at fixed times.

This is a difficult area of law and your employer could argue that the rule was justified if in fact the business shuts down over those periods (which seems to be what you are saying in your question). Also, although at one time tribunals were generally willing to accept that more women than men had primary responsibility for their children, it is no longer clear that this will always be the case. Bear in mind that claims to employment tribunals generally need to be brought within three months of the matter you are complaining about taking place. 

Q. Truebecca: I'm due to return to my job after 39 weeks on maternity leave and I've asked my employer to consider my flexible working request of three days. They have said yes, and they're happy for me to come back three days per week, but they want to put me on a six-month contract. I was previously employed full time with two months' notice period. I'm going to be doing my old job, essentially, but they are also planning to keep the person on who covered my job whilst I was on leave. They are giving them one of my 'old' responsibilities on a six-month contract also. I am concerned that this new contract is a way of managing me out of the business. Is this normal practice? Do I have to accept it or do I have any right to voice my concerns?

A. Lydia and Natasha: We are not completely sure from your question what your employer is suggesting. What is looks like you are saying is that your employer has asked you to go on a six-month fixed-term contract in order to accommodate your request to work three days, when you were previously on a permanent contract. If so, this is not normal practice. If your employer can accommodate your request for flexible working, it should do so without trying to alter the basis of your employment contract by changing you from a permanent to a fixed-term arrangement. Your employer could legitimately propose that the part-time arrangement lasts for a particular period and that you revert back to your old arrangement (ie permanent full-time work) if it does not work out, but not that you go on to a less favourable contract altogether.

If the proposal is for you to try the part-time arrangement for six months and revert back to full-time if the arrangement does not work out, you should discuss with your employer how an assessment will be made of whether the part-time arrangement is successful and make sure that you will be given a reasonable period of notice if your employer requires you to start working full time again. You are certainly not obliged to accept a fixed-term contract in substitution for your permanent contract. And if the proposal itself has been made to try and manage you out of the business because you are a mother/want to work part-time, it might of itself be direct or indirect sex discrimination.

It is not clear whether you have been through a formal flexible working application process and this is the answer you have received from your employer or whether this arrangement has been proposed in some less formal way. Either way, if you do not wish to go on to fixed-term contract, you need to make this clear. It is possible that your employer will then say that your part-time working request cannot be accommodated.

Have a look at our answer to Bluestorm's question for more detail on your rights in relation to flexible working requests, the formalities and what remedies you might have if you don't get the answer you want. It would very much ring alarm bells if your employer tried to pressure you to accept a fixed-term contract in substitution for your permanent contract. Please see the suggested sources of advice at the end of the Q and A.

Statutory maternity pay 

Q. Hannahmy21: Whilst on maternity leave and on statutory maternity pay, what is the position on re-payment for a contractual notice period? Is the employee entitled to their full salary during the contractual notice period on the basis that were the employee not on maternity leave, upon resigning, the employer would ordinarily ask the employee to leave the office for a period of gardening leave and recieve pay in lieu of notice?

"If you are giving notice whilst on maternity leave, your employer is not obliged to treat you in the same way as it would have treated someone who gave notice whilst working."

A. Lydia and Natasha: You may be entitled to paid notice, but the maximum period to which you could be entitled is one week. This is because the amount of notice that you are obliged to give by statute is only one week, and in terms of entitlement to payment during the notice period no account is taken of any greater period of notice required by your contract. Somewhat strangely, you will not even be entitled to this one week if your contract contains more generous provisions as to notice than the statutory requirements. If you are giving notice whilst on maternity leave, your employer is not obliged to treat you in the same way as it would have treated someone who gave notice whilst working.
  


Q. nam207: I'm due to return to work in June but financially it looks like I may be better handing in my notice. My contract says I must return to work for one month or repay maternity pay. Would I be able to return part time as planned whilst working my notice, or can my employer make me work full time? Also, the last month off before I return to work is actually accrued leave. Could I hand in my notice at the start of this and so not actually go back to the office or is this considered part of maternity leave and therefore I wouldn't have returned?

A. Lydia and Natasha: It is not clear whether you have already applied to work part-time. If you have, and your employer has agreed to that, you should be able to work out your notice on that basis, unless your employer can show that it would have to make arrangements that would simply not be practicable if they had to be put in place for only a month. For example, your employer might have to take on another part-time employee to do the work that you would have done if you were full-time.

Your employer might be able to say that, whilst it did not have grounds for refusing your part-time working request previously, it now does have a ground, ie that it cannot recruit someone on a part-time basis for a month only, when it will have to then recruit a full-timer. If you have not yet applied to work part-time, it may be that your employer would come up with a legitimate ground for refusing your request if it would be difficult to accommodate the situation (see the answer to Bluestorm's question for more detail on the grounds on which your employer can refuse a flexible working request and your rights in relation to flexible working).

Much will depend on how flexible your employer is willing to be, so it would be worth speaking to your manager and/or your employer's HR department. The situation in relation to your maternity pay is complicated. Remember that your employer cannot claw back the proportion of your maternity pay that is Statutory Maternity Pay (SMP), only the extra bit which they pay you under your contract which is over and above SMP.

The month of accrued annual leave is not part of your maternity leave but whether your employer can still recoup your contractual maternity pay if you give notice at the beginning of your period of accrued annual leave will depend on exactly what your contract says about this so you need to have a look at the contract and possibly take some advice if it's unclear (see the outline of sources of advice at the end of the Q and A).

A lot of contractual schemes simply say that you have to pay back contractual maternity pay if you don't 'return to work' for a certain period. So there might be some argument over whether taking a different kind of leave counts as 'returning to work'. Again a chat with your manager and/or the HR department might help; it may be that your employer does not generally seek to recoup maternity pay in these circumstances or that it would agree not to do so in your case.

 

Other

Q. toadmum: I am currently working on a fixed-term contract covering for someone's maternity. The contract ends in May and the lady I'm covering for is not returning and she has handed in her notice. I have been informed that it will go to interview in May/June and they will have to advertise but I'm welcome to apply. I believe I'm in the early stages of pregnancy at the moment and I'm unsure what I should do. Do I keep quiet about my pregnancy, go for the interview, and tell them afterwards? I do worry that if I do have to take maternity leave at the end of this year I won't get paid and may get made redundant.

"Generally, an employer is not legally entitled to refuse to appoint to a post because of the applicant's pregnancy, but unfortunately employers all too often do avoid employing pregnant applicants."

A. Lydia and Natasha: Generally, an employer is not legally entitled to refuse to appoint to a post because of the applicant's pregnancy, but unfortunately employers all too often do avoid employing pregnant applicants.

It is probably safer (and perfectly legal) to keep quiet about your pregnancy until you know whether you have been appointed.

Your entitlement to Statutory Maternity Pay depends on you having been employed continuously by your employer for 26 weeks including the qualifying week (which is the 15th week before your baby is due). Put simply this means you need to have been employed for the whole of your pregnancy; so unless there is a break between your fixed term contract ending and you being appointed to the permanent role, you should be entitled to SMP (and possibly to contractual maternity pay if your employer provides this; it will depend on the terms of the scheme).



It is unlawful discrimination (and unfair dismissal) for your employer to terminate your employment just because you are on maternity leave, which seems to be your fear. Obviously there is a risk in these cases that employers concoct another reason such as re-organisation, and say that an employee is being made redundant. Luckily the law does not make it terribly easy for an employer to do this, because even if a genuine redundancy situation arose whilst you were on maternity leave, your employer would be obliged to offer you any suitable alternative job which was available, in preference to employees who were not on maternity leave.

Your employer would also be obliged to provide you with the same information about the potential redundancy situation as you would have received if you were not on maternity leave. These points are also considered in our answer to Princesssugar's question. It sounds like everything is at an early stage for you and we hope your fears don't prove to be grounded. There are sources of advice set out at the end of the Q and A if things do go wrong.
 


Q. AmyMcM: I love my job and always intended to return after maternity leave. When my daughter was born she had to be resuscitated and following an MRI we discovered that she is extremely poorly, will not get better and has 'complex needs' and various issues that are 'life limiting' along with being visually impaired. She cannot be left with anyone, except my husband, myself or a nurse trained in resuscitation/choking, tube feeding, and as a result I sadly cannot return to work. We also spend a lot of time in medical appointments. Do I still have to pay back maternity pay? And when do I need to notify them of my intentions?

A. Lydia and Natasha: We were very sorry to hear about all that you are going through. We hope very much that regardless of the legalities of your situation, your employer will behave reasonably and sympathetically and that in the circumstances they would not pursue any possible claim for repayment of maternity pay. If that is not the case, then you may want to take specific advice from one of the sources detailed below. In general terms, the legal situation will depend largely upon the precise terms of your contract regarding the repayment of maternity pay.

It may be that there is some mention of what will occur in the event that you are unable to return to work through no fault of your own. Even if there is not, and the terms of the contract state plainly that maternity pay will always have to be repaid in the event that you do not return to work, there may be scope to argue that there is an implied term of the contract that maternity pay will not have to be repaid if it is impossible for the employee to return to work. That means that although the contract does not actually say that the money will not be due in those circumstances, had the parties to the contract thought about this possible situation when they entered into the contract, they would both have agreed immediately that the repayment provisions would not apply.

You might also be able to argue that the decision to require repayment was disability discrimination (there is some protection for people who suffer disadvantage because they are caring for a person who has a disability), but this is a complicated area of the law. As above, hopefully this will not be necessary and your employer will simply agree that the money does not have to be repaid. Bear in mind that there is no entitlement to recoup Statutory Maternity Pay, only the 'extra' amount that you received under your contract.

In terms of when you need to tell them about your intentions, there may be something in your contract, which gives details of when you need to notify your employer of your wish to return. Otherwise, you are only obliged to notify your employer if you wish to return to work, so there is no particular time limit that applies. That said, as you need your employer not to pursue the maternity pay, it may be that explaining the situation and your intentions before the date of return could make it more likely that it will respond sympathetically.

Our responses are intended only to contain general information and preliminary guidance and are based upon the information provided. They should not be used as a substitute for taking detailed advice specific to your situation. Below are some suggestions for obtaining legal advice and such advice should be taken before making any decision. Our responses should not, therefore, be regarded as legal advice, and both we and Mumsnet disclaim any liability in relation to their use. We have endeavoured to provide accurate and up to date information, but no representation or warranty, expressed or implied, is made as to the accuracy of the information contained in our responses.

Where to go for further advice

Free advice

Legal aid is not available for employment cases, but there are various sources of free legal advice:


  • Equality and Human Rights Commission and Equality Advisory Support Service: The Equality and Human Rights Commission has some excellent resources on equality law issues. There is also a free helpline for people with equality law problems called the Equality Advisory Support Service on 0808 800 0082.

  • Law Centres: These provide free telephone and face-to-face advice (often in the form of drop-in sessions) for a particular area. There is a list of local law centres on the Law Centres Network.
  • Citizens Advice: These provide free telephone and face-to-face advice on various legal issues, including employment disputes. You can use a Citizens Advice Bureau in the area in which you work or the area in which you live, and can find the relevant office by putting your postcode into the Citizens Advice website.

  • ACAS: This is a government-funded service,  which provides a free helpline (08457 47 47 47) for people involved in an employment dispute or who are looking for information on employment rights. 
  • Working Families: This charity helps working parents / carers and their employers find a better balance between home and work responsibilities. You can call their legal helpline on 0300 012 0312 for advice on employment rights, benefits, tax credits and maternity or pregnancy discrimination.

Advice you may already have paid for

  • Trades unions: Unions will generally provide legal advice to their members, and representation, if they feel that a case is worth pursuing to an Employment Tribunal.

  • House insurance: Many people have legal expenses insurance on their house insurance policies (often without being aware of it) that can provide you with advice and representation in the event of an employment dispute. Every policy is different, and many will only provide cover if you have lost your job, so check the terms carefully.


Paid-for advice


  • There are lots of solicitors who specialise in employment law. It is worth asking around for a recommendation if possible, but if not, the Law Society has a database of solicitors which can help you find a specialist.
  • 
If you would like to instruct a barrister, you can do so either through a solicitor or directly (ie without having a solicitor as well). There is a list of barristers who accept instructions directly from the public on the Bar Council website.



 

Last updated: 01-May-2013 at 4:25 PM