No Absolute Right to Flexible Working After Maternity Leave

In this article, I shall be looking at two recent UK cases in which an employment tribunal made clear that there is no absolute obligation on an employer to accept a new mother’s request to work flexibly on her return from maternity leave.

Although these are employment tribunal decisions, which are not binding on other tribunals, they are nevertheless worthy of consideration because they each show how an employer can successfully refuse an application for flexible working from a new mother.

Erroneous assumption

Many new mothers returning to work after maternity leave erroneously assume that she has an automatic right to change her working arrangements to suit her new circumstances and that a failure by their employer to agree to her request is sex discrimination. The only right she has is to make a request for flexible working.

The reality is that the employee and the employer approach the question of flexible working from different positions and have different objectives. While the employee is thinking of her new family situation, her employer has to think how to they are going to run their business without reducing the standard of service provided to customers and without undue inconvenience to other employees.

A successful request for flexible working is one in which these potentially conflicting requirements can be conveniently accommodated. The two cases discussed in this article were both instances where the needs of the business were demonstrated to have outweighed the desire of the employee.

Working from home

The first of the two cases is Whiteman v CPS Interiors Ltd and others. This is the background to that case:

Ms Whiteman, was a designer for a company that refurbishes commercial premises. She made a request to reduce her working hours on her return from maternity leave. Her employer accepted her request but turned down her request to work from home and to do most of her work after 6pm in the evening.

The employer considered that, although working at home primarily in the evenings might have been possible, it could not accommodate the request because:

  • Its collaborative way of working involved designers working together in a room looking at technical designs; and
  • Designs often have to be changed at short notice, something that would be difficult if the employee worked only at home in the evenings.

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 and to retract her resignation.

She brought tribunal claims for breaches of the flexible working legislation, constructive dismissal and indirect sex discrimination.

In the employment tribunal

In rejected all her claims, the employment tribunal made the following observations:

  1. There is no right to work flexibly, only a right to request to work flexibly.
  2. The onus is not on the employer to show that the request is impossible or very difficult to accommodate. An employer is quite entitled to say that: “Granting this request would not be in the best interests of our business; we believe what has been requested would be detrimental to our business in that, at best, it would cause us minor but more than minimal inconvenience.”
  3. The assumption is that the request has been dealt with reasonably if the “ACAS code of practice on handling in a reasonable manner requests to work flexibly” has been followed.
  4. Employers must not unlawfully discriminate and a rejection must be based on one of the eight grounds specified by the legislation.

Requirement to work full-time

In Smith v Gleacher Shacklock LLP, the employment tribunal had to consider whether it was indirect sex discrimination for an investment banking firm to require a single parent to work full-time. These are the facts of the case:

Ms Smith, a single parent, working as an executive secretary for a small investment bank was returning from maternity leave. She asked to work three days per week in the office, followed by homeworking on Thursdays and not working on Fridays.

Following a meeting, her employer turned down her flexible working request because of the:

  • Impact on the firm’s ability to look after clients;
  • Unpredictability of her role;
  • Tight timescales for various tasks; and
  • Disproportionate pressure on the small team.

The employer gave examples of recent difficulties that would have occurred had Ms Smith not been in the office. These included assisting with a “highly important” call from the firm’s regulatory authority.

The employer made various compromise suggestions, including that she could leave early for nursery runs and initially return on a part-time basis, but agreement could not be reached and Ms Smith brought claims for indirect sex discrimination and breaches of flexible working legislation.

In the employment tribunal

The employment tribunal rejected all of Ms Smith’s claims.

The tribunal accepted that requiring 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 concluded that, in any event, the employer’s stance was justified. The employer’s legitimate aim is to “ensure that its partners and clients receive high-quality, efficient secretarial support throughout the week, without problematic handovers”. The employer’s means of achieving its aim were found to be proportionate, with the disadvantage caused to Ms Smith being outweighed by the needs of the business.

The takeaway

In both these cases, the employer was successful because it:

  • Followed the ACAS code of practice on handling in a reasonable manner requests to work flexibly, which gave rise to the assumption that the request had been handled reasonably;
  • Suggested compromise working arrangements that could be accommodated;
  • In turning down the application, gave examples of why the request could not be accommodated including citing the type of difficulty that could arise if the request was granted; and
  • Turned down the request for one of the eight permitted business reasons.

In a follow-up article, I shall be looking at the factors an employer should consider when faced with a request for working from home.

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