What mothers need to know about returning to work

I read an article in “Psychologies” magazine recently on what mothers need to know about teenage sons. Very useful it was too. However it occurred to me with my employer lawyer hat on that mothers could benefit from a similar approach to returning to work. In my experience advising employers and employees, returning to work mothers usually have two main concerns when they are contemplating returning to work;

• Hours of work and childcare arrangements, and


• Will they be able to return to the same work/position?
  

There are now a number of strands of legislation which are designed to deal with both those concerns.

If you are returning to work before or after Ordinary Maternity Leave (OML) (the first 26 weeks of maternity leave) then you have a right to return to the same job - with any enhancements to terms and conditions that took place while you were off, unless there is a redundancy situation. If there is a redundancy situation then you have an entitlement to be offered any suitable alternative employment ahead of any other employees. This is a rare example of lawful positive discrimination in favour of mothers.

If you are returning during or after Additional Maternity Leave (AML) then the position is slightly different. You still retain the right to return to the same job but an employer can argue that it’s not reasonably practicable for you to return to the same post. This could happen if there has been a re-organisation. In that scenario you would still be entitled to return to another job which is both suitable and appropriate.

If you are not allowed to return to the same job (or a similar one if post AML) or not offered suitable alternative employment, then you could bring claims for sex discrimination and automatically unfair dismissal.

Let’s assume though that doesn’t happen and your job is still available but you’ve considered your childcare arrangements and you would prefer to work from home for part of the time and reduce your hours on the days you are at work. What do you do?

The first thing you need to be aware of is that there are two key rights you can rely on in this situation. First of all you have the right to make a request to work flexibly. Secondly you have the right not to be subjected to indirect discrimination in accordance with the Sex Discrimination Act 1975.

Requesting Flexible Working Arrangements

The Employment Act 2002 established the right for a parent to make a written request every 12 months to change their working arrangements. This means you can ask to change the hours, the location or indeed the way you work to enable you to work flexibly. If agreed, the changes would become permanent changes to your terms and conditions of employment.

There is a set procedure and timetable the employer is required to follow in order to consider your request and if necessary your appeal to any rejection. To a large extent you will have to spend more time on this initially as you will have to prepare a business case to justify your request. In other words, explain how your changes could be accommodated.

The process will usually involve a number of meetings and/or conversations with your employer to discuss how it would work. The most common outcome usually involves the employer suggesting a variation on your original request. It is worth having a Plan B in mind therefore if you can, just in case your preferred Plan A is not acceptable.

It is worth bearing in mind you do only have a right to make a request to work flexibly under the Act. Your employer can justify declining your request, after giving it serious consideration, by relying on one of the following reasons to reject it:

• The burden of additional costs.


• Detrimental effect on ability to meet customer demand.


• Inability to re-organise work among existing staff.


• Inability to recruit additional staff.


• Detrimental impact on quality.


• Detrimental impact on performance.


• Insufficiency of work during the periods the employee proposes to work.


• Planned structural changes.

When preparing your request therefore, it is worth trying to cover off these reasons in your business case in the first instance. By doing that it makes it much harder for the employer to lawfully reject the request.

Before you embark on the statutory request route it is worth considering making a voluntary request in the first instance. By doing this you might be able to reach an agreement quickly without having to prepare all the paperwork. If an agreement isn’t reached voluntarily though, you still have the option of making your once a year formal written request, already armed with an insight into the reasons why it could be rejected.

Sex Discrimination

Employers have tended to forget that the right not to be subjected to sex discrimination continues to exist in parallel with the right to request to work flexibly. Even if your employer follows the correct procedure and rejects your request for one of the lawful reasons set out earlier, you may still be able to bring a claim for discrimination.

You could bring a claim for direct discrimination but as a woman you are less likely to succeed as the right to request flexible working applies to men and women. The employer could successfully argue they would have treated a man the same way. However you may have more scope for success with an indirect discrimination claim.

To succeed with an indirect discrimination claim you have to be able to show that the employer by rejecting your request and insisting that the job cannot be carried out on a reduced hours basis is applying a provision, criterion or practice (PCP) which:

• Applies or would apply equally to both sexes; but


• Which puts one sex at a particular disadvantage to the other, and


• Which puts the particular employee at that disadvantage; and


• Which the employer cannot show is justified as a proportionate means of pursuing a legitimate aim.

The application of this test can vary quite widely however and it’s also reliant on the individual facts of each case to ascertain the commercial rationale for the non flexible work condition being applied by the employer, weighed up against its discriminatory effect on the employee.

While the complexity of the law in this area has to be considered, an employer will also usually want to avoid the risk of a discrimination claim. Therefore if you are unsuccessful in the initial stages of making a formal request, it can sometimes be beneficial to remind an employer of their additional obligations under the Sex Discrimination Act in the appeal process.

Summary

Before returning work therefore, it is important that you acquire information about what’s happening in the workplace. Consider using keeping in touch days to maintain this knowledge or do this informally over a coffee/visit to the workplace to catch up. Then prepare well if you have to go down the formal request route. Try to put yourself in the shoes of your employer and prepare a good business case for flexible working that covers off any potential concerns the employer could have. Those are the requests that are difficult to turn down.

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