Returning to work after maternity leave can be a daunting thought for a parent. Weighing up childcare responsibilities with work commitments might mean they want to work differently from how they did before they went on leave.
Many employers are nervous when they receive a flexible working request, not knowing how to deal with it or just assuming that the job can’t be done differently to how it has always been done, though the pandemic and the shift in how many of us work has undoubtedly changed that landscape.
Our team frequently advises employers in situations like this and an example of such a scenario is set out below.
A manager has made a request after returning from maternity leave to work three days a week
An employee who holds a managerial position popped into see her employer whilst off on maternity leave. She advised that she was going to be returning in eight weeks, after taking nine months of leave. During their conversation the employee mentioned that she doesn’t want to return to her previous full-time hours and was hoping to come back to work three days per week, meaning she can continue to provide care to her baby. The employer doesn’t know how they will make the role work on part-time basis and has the following questions:
• If she is not returning to the role she had previously been doing which was five days, do we still have to offer her the same role?
• If we were to employ her on a three day per week basis, could we just bring her back as a team member, rather than offering her the manager role? If so, what are the guidelines regarding the rate of pay?
Formalise the flexible working request
An employee who has over 26 weeks’ employment has a statutory right to make a flexible working request. This can encompass any kind of change to how someone works but will typically mean a request to change the hours or days worked or the place of work.
It’s always useful to ask an employee to put the flexible working request in writing, so the business can formally consider it. It may be that you already have a flexible working policy in place but if you haven’t, we can advise on the steps to be taken and help you with getting a policy in place for the future. Having the request in writing ensures that there is no confusion about what is being requested and it also gives the employee an opportunity to explain how they think the requested change might impact the team/organisation and how any negative impacts might be addressed.
Conducting the meeting & considering the request
On receiving a request for flexible working, you should listen to what your employee has to say and encourage them to make suggestions of how they see the proposal working in practice.
There are eight statutory reasons for refusing a flexible working request (see these set out in our separate article here). You will need to consider the employee’s request objectively and justify any refusal on one of these grounds. If, in the scenario above, the employer had concerns that a management position could not be carried out by a part-timer or as a job share, they would need to carefully and objectively justify why they believe that is the case. A failure to do so may potentially be indirect sex discrimination as more women than men are likely to combine a job with childcare responsibilities and therefore work part-time.
Remember, too, that an employee returning to work following maternity leave has certain rights which protect both their role and the terms and conditions of their employment. If an employee returns from additional maternity leave (the second 26 weeks of her leave), she still has the right to return to her former role. However, if that is not reasonably practicable, she can be offered another suitable and appropriate job on terms and conditions that are not less favourable.
In the absence of a flexible working request being made, suggesting that a woman returning from maternity leave returns to a team member role, rather than the previously held managerial position, may not be suitable and appropriate in terms of its seniority/duties/responsibilities. Remember, too, that if this is on lesser terms and salary then this may also constitute discrimination on the grounds of maternity.
Making a flexible working request
However, the situation is slightly different for an employer in the context of an employee making a flexible working request. In the scenario above, the managerial role remains available but only on a full-time basis. If the employer has a sound business reason and can demonstrate that it is not possible to perform the role in a shortened week (under the eight statutory reasons), and/or a job share is not feasible in this circumstance, then the employer may consider other roles where this could be facilitated, and by agreement the role/salary could be changed accordingly. We strongly recommend that an employer makes sure they would be able to demonstrate that alternatives have also been considered in arriving at such a decision.
Flexible working requests will often be granted subject to a trial period too, so that is a further dimension for employers to bear in mind if they want to see how the arrangement works in practice, before committing to a change of contract for the employee.
Listen, talk and find a sensible solution
Employers should listen to any suggestion from employees that their role could be carried out on a job share basis, for example, it might be suggested that the person who has covered the role during the maternity leave period continues to perform the manager’s role on a certain amount of days per week.
Any changes to an employee’s role should be formally documented in writing and, subject to any trial period, will be permanent. Where a formal flexible working request has been made, the statutory regime does not permit another request to be made within a 12-month period (although an employer can agree to consider a further request sooner than that, if they are happy to do so).
Although you might have initial objections to a request, it is important to try and work through these. This will protect you both against discrimination claims and otherwise against having a disgruntled employee. Employees’ confidence in their employer can be damaged if they feel a request is rejected out of hand, particularly given that these requests are often made at a potentially difficult time for the individual personally. Particularly at a time when recruitment and retention of employees is so difficult, if you are able to support an employee in returning from maternity leave, even if on fewer hours, there are ultimately likely to be benefits for the organisation.
If you need support with managing employee’s returning from maternity leave, our Employment team will be able to assist you.