Avoid falling foul of parental rights on flexible working

Employment Law consultants are frequently asked, “I have an employee who is due return to work after a period of maternity leave and I know, on the grapevine, that she will be asking to work part time, what can I do?

Firstly she has a legal/statutory right to return to work in exactly the same job as before she went on maternity leave, ie. on the same hours, pay and conditions as previously, and you will be expected to keep that job available to her.  This is especially so if she does not take the full 52 weeks Statutory Maternity Leave, eg. 26 weeks.  However, organisations are dynamic institutions and constantly evolving and it may not always be possible to “freeze” that role for 12 months (ordinarily an employer will make temporary arrangements for this period).  If she wishes to return to work full time then any alternative role must not be appreciably less in terms of pay and conditions and status.

Strictly speaking, an employee does not have the right to return to work part-time, or with reduced hours after maternity/paternity leave. This would be a radical change to the original contract of employment and can only be amended by mutual agreement. These revised terms would need to be agreed between the parties. An employer would be ill advised to reject the part-time working request out of hand as this would run the risk of an indirect sex discrimination claim and as we know any compensation flowing from such a claim is unlimited.

So in what circumstances can an employer refuse?

This is complicated by the right to request flexible working for any employee returning from Maternity Leave (or Paternity Leave where part of the woman`s Maternity Leave entitlement has been transferred to the other partner) has the right to request to work flexibly.

This may be a change to their hours, times, or place of work and may include a re-arrangement of some duties and can encompass a wide range of working patterns such as: part time, flexitime, term time working and working from home.

To make a request, the employee must have been employed for a minimum of 26 weeks and be caring for a child under the age of 17 (in the case of a child with a disability, 18 years of age). In maternity cases these will automatically be met.

The employee must be the parent of the child and have, or expect to have, responsibility for the upbringing of the child, with the request being made to allow them time to care for the child.

Any application must be in writing and contain certain information, such as the effect that the proposed changes would have and how the employee thinks that the employer might be able to deal with these.  Therefore a certain amount of thought and effort has to be applied by the employee.  It is not a one way street.