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Flexible working requests after maternity leave

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In two recent Employment Tribunal cases, it was held that there is no absolute obligation on employers to accept new mothers’ requests to work flexibly on their return from maternity leave.

In the case of Whiteman v CPS Interiors Ltd, Ms Whiteman was a designer for CPS Interiors Ltd which refurbished commercial premises. On her return to work from maternity leave, Ms Whiteman requested to reduce her hours. CPS Interiors accepted the request; however it rejected a further request for Ms Whiteman to work from home. CPS interiors said that it could not accommodate the homeworking request because her job involved designers working together in a room looking at technical designers, and designs often change at short notice, something that would be difficult if the employee worked at home.

Ms Whiteman resigned, citing the handling of her flexible working request as the reason. She rejected the employer’s offer to deal with her complaints under the company’s grievance procedure. She brought tribunal claims for breaches of the flexible working legislation, constructive dismissal and indirect sex discrimination.

The Employment Tribunal rejected all her claims, stressing that there is no right to work flexibly, only a right to request to work flexibly. It said employers must follow the ACAS Code of Practice on handling flexible working requests in a reasonable manner. However, as long as their approach is not discriminatory, employers can reject a flexible working request.

In another case of Smith v Gleacher Shacklock LLP, Ms Smith was a single parent working as an executive secretary for small investment bank Gleacher Shacklock LLP. On Ms Smith’s return from maternity leave, she submitted a flexible working request to work three days per week in the office, followed by homeworking on Thursdays and to take Fridays off.

Gleacher Shacklock LLP turned down the request because it would have an impact on the firm’s ability to look after clients, unpredictability issues, tight timescales for various tasks, and the disproportionate pressure on the company’s small team. Ms Smith’s employers also provided her with recent examples of difficulties that would have occurred had she not been in the office.

Ms Smith appealed against the decision but was unsuccessful. Ms Smith subsequently brought claims for indirect sex discrimination and breaches of flexible working legislation.

The Employment Tribunal rejected the claims. The Tribunal did accept Ms Smith’s argument that full-time working places women at a particular disadvantage compared with men because women are more likely to be sole parents than men. However, the Tribunal did not accept the argument that this requirement placed Ms Smith at a particular disadvantage. She conceded that she would have been financially better off working full time and engaging childcare.

The Tribunal concluded Gleacher Shacklock LLP’s stance was justified. The employer’s had a legitimate aim to ensure its partners and clients received high-quality, efficient secretarial support throughout the week, without problematic handovers. Achieving this aim was found to be proportionate, with the disadvantage caused to Ms Smith outweighed by the needs of the business.

On 30th June 2014, the right to request flexible working was extended to all employees under the Children and Families Act 2014. There is a duty on employers to consider requests in a reasonable manner and for an employer to notify the outcome to the employee within the 3 month decision period (unless an extension is agreed). Employers should ensure that their Flexible Working policies and procedures are updated accordingly.

Anyone wishing to discuss issues relating to flexible working should contact Sally Morris on 01905 734032.