Thackray Williams

Any change to your working conditions, location or contract can be implemented if both parties agree.  So if after your maternity leave you propose that you will work a 4-day week and your employer agrees, you are varying your original contract by agreement.  This is obviously the most sensible and amicable route to go down.

Although you may not know what proposal you want to put to your employer about your return to work, the sooner you make the suggestion, the more time your employer has to consider and implement it.

If your employer is not prepared to deal with things informally, you can, if you meet certain qualifying criteria, make a statutory request to work flexibly.  If you make a request, your employer has a duty to consider it.  The Department for Business Enterprise and Regulatory Reform (BERR formerly the DTI) provide a form (URN 09/629) to assist you in making your request and do make sure that you include all of the required information.

You can only make one application to work flexibly a year and the changes if implemented and agreed will be permanent (they can of course still then be varied by agreement, but you have no ‘right’ to further changes or to return to your old working conditions).  Your employer should then call you to a meeting (at which you have the right to be accompanied) in order to discuss the application.  Although your employer may not agree to your specific request, it may be possible to agree to a compromise at the meeting or to talk through other flexible working scenarios.

Your employer can refuse your request on the following grounds:

• planned structural changes
• the burden of additional costs
• a detrimental impact on quality
• the inability to recruit additional staff
• a detrimental impact on performance
• the inability to reorganise work among existing staff
• a detrimental effect on ability to meet customer demand
• lack of work during the periods the employee proposes to work

If you can, try to deal with, answer or pre-empt a refusal on these grounds in your application.

If your application is refused, you have a right of appeal.  If you are still unhappy, you can try to resolve things informally.  If not, you can raise a grievance.  Some form of mediation could assist, but ultimately, you can bring a claim in the Employment Tribunal for either your employer’s failure to follow the correct procedure or if the decision reached was factually incorrect.

It is also potentially possible for you to bring a claim for sex discrimination.  There is no limit on compensation for discrimination.

Do remember that an Employment Tribunal may not provide the satisfaction which you are seeking, although it can order compensation and make recommendations and declarations.

Challenging your employer on any aspect of their decision can at least sour relationships between you and can ultimately make your working life unbearable.  Whilst you do have ‘rights’, enforcing them can be difficult for you and just having the right does not necessarily mean that your employer will be reasonable.

If you make a flexible working application and whether you are successful or not, if you are then subjected to a detriment (for example, you are then overlooked for promotion), this could also lead to an Employment Tribunal claim.

Finally, do remember that a dismissal or being subjected to a detriment due to pregnancy or maternity leave is unlawful.

For more information about employment law and your maternity leave contact Emma Thompson at Thackray Williams Solicitors on 020 8290 0440 or email emma.thompson@thackraywilliams.com.