Many working mothers face the challenge of balancing childcare with work, so it’s not surprising that requests to change their hours of work to fit around their family needs are popular, especially when returning to work after taking maternity leave.
How should an employer approach such a request? Do employees have the right to reduce their hours? What are the benefits to an employer? What are the rules for reducing hours after maternity leave for both employer and employee alike?
Do employees have the right to ask for reduced hours?
All employees, not just those returning from maternity leave, have the right to request a change to their working hours, place or other conditions related to their job as long as they meet the following criteria:
- The employee has worked for the employer for a minimum of 26 weeks when they make the request.
- The employee has not made a similar request during the last 12 months.
- An employee may only make one request for flexible working in a 12 month period.
It should be noted that the employee’s right is to make the request only. With reasonable justification, the employer can still deny the request.
The umbrella term for such changes to a working role is flexible working.
What is flexible working?
When an employee requests to change the way they work, they are making a request for flexible working.
Flexible working includes reducing the number of hours an employee works, along with:
- Flexitime – where the employee works set core hours but decides how to arrange the rest of their hours.
- Part-time – reducing the number of hours worked in a full-time role, for instance, to 20 hours a week.
- Job sharing – responsibility for a full-time role is split between two workers.
- Compressed hours – working the usual number of hours but over less periods of work.
- Shift work – several employees hold the same position but work different periods of the working day.
- Annualised hours – where an employee works a set number of hours during a year but has a level of flexibility over how they arrange those hours.
- Working during term-time only
- Working from home
An employee who wishes to reduce their hours after maternity leave may find that several of the above could suit their situation.
Benefits of flexible working to an employer
It might seem that reducing the working hours of an employee is to the disadvantage of the employer, incurring time and effort to initially put the change in place and then arrange cover for the remaining hours, but flexible working can prove beneficial to a business:
- It allows the employer to retain experienced and suitably skilled staff in the workforce.
- Employees are happier because they can arrange their working hours to suit their family needs, rather than having to struggle to balance both or find a new job.
- Employees feel listened to and valued by their employer.
- Flexible working can save on recruitment costs where a move to different hours, for instance, means that a valued member of staff is retained.
- Offering flexible working promotes the employer as forward-thinking and generous.
How does an employee request a change in hours?
There are three main ways that an employee can make a request to change their hours:
Statutory request for flexible working
The employee should make their request in writing or by email, including:
- the date the request was made
- what form of flexible working they would like to put into place to reduce their working hours, e.g. part-time or job-share
- when they would like the reduced hours arrangement to start
- any previous requests they have made for flexible working
- why they feel the need to reduce their working hours, e.g. cost or lack of childcare
An employee may only make one statutory request for flexible working in a period of 12 months.
Non-statutory request for flexible working
Employees with less than 26 weeks’ service with an employer do not have the statutory right to request flexible working. However, some employers may choose to offer flexible working to all employees, regardless of how long they have worked for the business.
Non-statutory requests for flexible working can be made more than once in a 12 month period but don’t carry the same legal protection or employee obligations as statutory requests.
A request can be made in the same way as a statutory request for flexible working outlined above.
Informal request for flexible working
An informal request for flexible working, while still requiring authorisation by a line manager, does not generally mean a change to the employee’s contract.
Informal flexible working may cover a situation where the flexibility is only occasional, such as the opportunity to work from home for a particular project or during a child’s sickness, but may happen more than once, i.e. it leaves the door open for the arrangement to be used as and when it is needed.
Alternatively, it may be a one-off arrangement, such as leaving early one day to attend a non- medical appointment.
How should an employer respond to a request?
When a request for flexible working is received, a meeting must be arranged between the employer and the employee as soon as possible. The meeting will allow the employer to confirm the details of the request, explain their own procedures and approach to flexible working, gather any further information, and confirm what will happen next.
The employee does not have a statutory a right to be accompanied but it is generally accepted as good practice to permit an employee to bring either a trade union representative or a work colleague to the meeting.
The employer is required to assess whether the request for reduced hours is feasible. Each situation should be handled on an individual basis, but the employer could consider factors such as:
- How might the new arrangement benefit the business?
- What are the disadvantages of reducing hours?
- Is it possible for the job in question to operate on a part time basis? e.g. would it cause problems with cover or available skill base?
- What is the financial cost or benefit?
- How would it affect other employees?
- Is there a compromise that can be reached?
The employer must also take into consideration any related legislation such as the Flexible Working Regulations 2014, Employment Rights Act 1996, and Equality Act 2010 and ensure that no employee rights are breached in the handling of the request for flexible working, for instance, that an employee is not unfairly discriminated against and that they are kept fully informed of a risk to their employment.
Employers can only refuse them if there is a business reason for doing so under one of the following grounds:
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- planned structural changes to the business.
The final decision should be sent to the employee in writing and should include:
- the decision
- why this decision was made
- where the request is granted, details on the new arrangement, e.g. start date
- where the request is denied, what will happen next
- the process to appeal
Where the request is granted, the worker’s employment contract terms should be amended accordingly and kept on file.
Where the request is denied, the employee may choose to appeal. Employers should have in place a clear appeals process.
In the event that an arrangement cannot be agreed through internal procedures, the employee may consider further options such as raising a formal grievance, making an appeal through the employee’s trade union or bringing a claim at the employment tribunal.
The processing of any flexible working request must not take any longer than three months in total. That three months begins on the date the request is made and ends with the final decision, including any appeals made by the employee.
Risk of discrimination
When handling a request to reduce hours after maternity leave, the employer must be able to demonstrate that they have carried out a full, fair and lawful investigation into the request before making their final decision.
All employees have the right to request flexible working, such as a reduction in hours, and to be treated fairly and without discrimination.
Employees on maternity leave have the right to return to work, whether that is to their original job or to that job with agreed changes made, such as to reduce their working hours.
The employer therefore has an obligation to do all they can to assist the employee to return to work after maternity leave.
The main risk of discrimination claims comes into play when the employer can’t demonstrate that their decision to deny a request for reduced hours is justified.
In this situation, justified means that the change would be detrimental to the business and that the employer has done everything possible to find a solution.
For instance, an employee requests that she return to work after her maternity leave on reduced hours and proposes a job-share arrangement. The job requires cover for full-time hours because of its customer-facing nature. Due to the employee’s particular skill-set and high level of education, an equivalent and suitable job-share partner can’t be found, either internally or externally. The employer demonstrates that they have carried out an extensive recruitment search and can find no other solution to the situation.
It is therefore always to the employer’s benefit to fully consider any request for reduced hours or flexible working, investigate it extensively and fairly, and do everything possible before making their final decision.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
