Maternity Leave: Flexible Working Request

Returning to work after spending months away from the office on maternity leave can be a stressful and challenging experience for a new mother. Undoubtedly, childcare arrangements for your newborn following your return to work will be a key area of concern for you.

To solve this issue you can make a flexible working request to adjust your working arrangement with your employer. Statistics published in the CIPD UK Working Lives Executive Summary 2019 state “more than of UK employees (54%) worked flexibly in some way in the last year”.

What is flexible working?

Flexible working is a method of adjusting your working arrangement to suit your needs and improve your work-life balance. One example of the use of flexible working is changing your working arrangement to assist with childcare responsibilities (such as dropping/collecting your children to/from school).

There are several different ways in which you can work flexibly:

1. Job sharing – sharing your role and hours with another individual.
2. Working from home – working on site for an allocated number of days/hours a week and fulfilling the rest of your job duties remotely from home or an alternative location (e.g. 4 days a week in the office and 1 day a week at home).
3. Part time – working fewer hours than your full-time hours.
4. Compressed hours – working full-time hours over less days.
5. Flexitime – choosing when you start and finish work but ensuring that you work “core hours” e.g. 10.00am to 4.00pm and working a set number of hours.
6. Annualised hours – working a set number of hours per annum but choosing when to work these hours. You may need to work certain “core hours”.
7. Staggered hours – working with a different start, finish and break time in comparison to other employees.
8. Phased retirement – if you are considering retirement you may reduce your hours and work part time as part of a phased retirement plan.

Do I qualify for flexible working?

Any employee (including trainees and apprentices) can make a flexible working request provided that

1. They have been working for the employer for 26 weeks (including maternity leave); and
2. They have not made a flexible working application in the past 12 months.

Therefore, any parent, carer or guardian can make a flexible working request provided they meet these criteria.

If you meet these criteria then you have the right to make a flexible working request. This is not to be confused with a right to work flexibly. You must first apply for flexible working and have your application approved by your employer before you are able to adjust your working arrangement.

How do I apply for flexible working?

You can informally discuss flexible working with your line manager but you should make a formal request for flexible working in writing. Remember, you are only entitled to make one flexible working request every 12 months.

The following key information should be included in your request:

• The date of the application;
• A statement that you are making a statutory request;
• Details of the flexible working arrangement you are seeking;
• Your proposed start date for flexible working;
• How your flexible working could impact the employer and how this could be dealt with. This could include any benefit the change would have to your work, the employer or any of your co-workers;
• Whether a previous application was made. If so, you should state when this application was made;
• If applicable, whether your request is related to a reasonable adjustment for a protected characteristic.

What happens once I have applied?

Your employer should deal with your request in a “reasonable manner”.

ACAS have produced a Code of Practice and a Guide to assist employers dealing with flexible working requests, providing guidance on the best practice for considering your request.

Your employer should discuss your request with you. This discussion should take place shortly after you have submitted your flexible working request. Usually, you will be invited to a meeting to discuss your request. This meeting should take place at an appropriate and private location. No discussion would be required where your employer has agreed to approve your request without requiring any further information.

It is important that you remain in good communication with your employer through this process to avoid any confusion. For example, if you fail to communicate that you are unable to attend a meeting in relation to your request, your employer may treat your request as withdrawn.

When attending a meeting your employer should allow you to be accompanied by a trade union representative or a work colleague. This may be particularly useful if you do not speak English as your first language or where this support mechanism is required as a reasonable adjustment for a disability.

In considering your request, your employer should weigh up the benefits of the requested change to you and the business against any adverse impact on the business that may be caused by the change.

How long will it take my employer to consider my flexible working request?

In most circumstances it will take your employer up to three months to review your flexible working request. This may be extended for a further period is both parties agree to an extension.

What if I need urgent leave?

You may not be in a position to wait three months for your employer to respond to your flexible working request if you have urgent childcare obligations.

Here are some alternative methods that you can use to meet your childcare obligations:

1. Parental Leave – If you have worked for your employer for over a year you are entitled to up to 18 weeks of unpaid leave per child. This will usually last until your child is 18 but this age limit will vary from employer to employer.
2. Annual Leave – You can use your annual leave allowance to book time off from work to meet your childcare obligations.
3. Request unpaid leave – This option may be preferred if you have used up your parental leave entitlement and annual leave entitlement. Unpaid leave will be subject to approval from your employer but this should not take as long to process as a flexible working request.

What if my employer does not respond to my flexible working request?

It is useful to maintain a good relationship with your employer even if they have not responded. You should e-mail or call your employer to arrange a meeting to discuss your request and any delay you have faced in the request process.

If your employer still does not respond you can write formally and document the attempts you have made to contact them, attaching any relevant evidence of this e.g. e-mails. It would also be advisable to set a reasonable deadline for a response before further action is taken, such as 7 or 14 days.

What happens if my flexible working request is accepted?

If your request is accepted your employer should set out the changes to the terms and conditions in your contract via a new contract or a letter. You should be provided with this document within 28 days of the request being accepted. This document should be signed by you to confirm that you are accepting these changes to your working arrangement. If your arrangement is only for a certain period or time or subject to a scheduled review then this should also be outlined in the document.

Your request may be accepted on a trial basis. This will give your employer the chance to assess the impact of your request on the business before making the arrangement permanent. It is recommended that if your request is accepted on a trial basis that you have review periods. The trial should not last longer than required to assess whether the arrangement is sustainable.

What happens if my flexible working request is rejected?

If your request is rejected your employer should set out the reasons for the rejection in writing.

Your employer can reject your request for eligibility reasons i.e. if you are not entitled to bring a claim due to your length of service, if you are not an employee, if you have brought a claim within the last 12 months.

Alternatively, your employer can say no because of a good business reason. They cannot simply refuse to accept your request due to a trivial reason such as a bad experience with a flexible working arrangement in the past.

There are eight reasons under legislation which may be considered a good business reason:

1. The burden of additional costs;
2. Detrimental effect on ability to meet customer demand;
3. Inability to reorganise work among existing staff;
4. Inability to recruit additional staff;
5. Detrimental impact on quality;
6. Detrimental impact on performance;
7. Insufficiency of work during the periods the employee proposes to work; or
8. Planned structural changes.

An employer will only need to rely on one of these reasons to reject your request.

Can I appeal the decision to reject my flexible working request?

You do not have a statutory right to appeal the rejection. However, an appeal is recommended by ACAS as part of the “reasonable manner” in which your employer should deal with your request.

The appeal process will be set out by your employer and as part of the appeal you should be entitled to bring a representative to any appeal meeting.

In your appeal it is useful to provide the following information where appropriate:

• Why the decision was wrong/unfair;
• The flaws in the procedure;
• Any new information or evidence that was not previously available.

Can I bring an Employment Tribunal Claim?

If your appeal is rejected you may wish to bring an Employment Tribunal claim. You may be able to bring a claim to the Employment Tribunal if your employer:

• Failed to deal with your application in a reasonable manner;
• Failed to notify you of the decision to reject your application within the correct decision period;
• Failed to rely on a statutory ground as a reason when rejecting your application;
• Made the decision based on incorrect facts;
• Treating your application as withdrawn when they had no grounds to do so.

If you believe you have been discriminated against on the grounds of your pregnancy, maternity or your gender you may also have an additional claims for sex discrimination and/or pregnancy and maternity discrimination.

Also, if you have felt forced to resign as a result of the way your flexible working request has been handled and you have at least 2 years service, you may be entitled to bring a claim for constructive unfair dismissal.

Contact Us

If you are considering legal action against your employer, or if you are simply looking for further advice on your situation, contact us today on 0330 221 0684 or by e-mailing [email protected]. As specialists in employment law we have the knowledge and experience to guide you through your matter.

Further information

For further guidance on issues on maternity leave read our blog posts on returning to work after maternity leave and protection from redundancy during maternity leave .

Disclaimer: The above information should not be taken as legal advice. For legal advice on employment law matters please contact a member of our team directly.