Managing maternity leave | Returning to work and flexible working

Yes, you must follow a procedure if an employee uses her statutory right to make a request for flexible working, unless you have an informal discussion and agree a different work pattern. If an informal discussion does not lead to an agreement, you should follow the procedure as set out in the ACAS Code on Flexible Working.

The ACAS Code says you must consider the request in a reasonable way and:

  • You can only refuse on prescribed grounds.
  • The employee must be told of the decision within 3 months.
  • Only one request can be made in any 12 months.
  • The change will be permanent unless otherwise agreed.
  • Failure, by you, to consider the request and act reasonably may give rise to a claim for compensation.
  • An employee must not be disadvantaged or dismissed for making a request.
  • An unreasonable refusal of a request may be discrimination.
  • An employment tribunal can order you to reconsider the request and award compensation. 

If an employee discusses the possibility of working flexibly in an informal way, it is good practice to consider this to see whether you can agree, taking into account the employee’s needs and the business needs. You must not refuse without having good reasons to do so. 

If an employee has been employed for 26 weeks she has a statutory right to request flexible working, under the procedure in the ACAS Code. All employees can make such a request, not just carers.

Even if she has not been employed for 26 weeks she can make a request and a refusal by you, were not justified, might be indirect sex discrimination.

See guidance from Acas on flexible working

She (or he) can ask to change:

  • the hours she works, for example reducing the hours
  • the time she works, for example a later start or earlier finish, and
  • working from a different place, such as home.

This would cover:

  • A reduction in hours, for example from 35 to 25 hours,
  • Compressed hours, for example working 35 hours but over four days.
  • Flexi-time, for example flexible start and finish times.
  • Homeworking, which may be one day per week, or a few hours.
  • Job-sharing.
  • Shift working; usually fixed shifts (not variable shifts) are best for parents.
  • Term-time working.

Yes, it will usually be a permanent change to the contract unless your employee asks for it to be on a temporary basis and you agree.

Male employees who have worked for you for more that 26 weeks have a statutory right to ask for flexible working, for example to care for children – or other reasons. You must treat the request in the same way as you would treat a request from a woman in similar circumstances. Failure to do so may be sex discrimination.

For example, if a man asks to work a four-day week to spend the fifth day looking after his daughter, his request should be considered in the same way as a woman asking to work a four-day week caring for a child. But, if all employees want to take Friday off and that would leave you short staffed on a Friday, you can refuse the request for business reasons, that is the need for staff to work Fridays.

An employee must make a written, dated application setting out:

  • Proposed change to working conditions and date of change.
  • Effect of change on the employer and how to deal with that.
  • A statement that this is a statutory request and setting out any previous applications, with dates.
  • If the change is because of a disability or to care for a child or dependant, it is good practice to encourage the employee to say this, so it can be taken into account.

Unreasonable refusal of flexible working may be sex or disability discrimination.

See guidance on flexible working from Acas

You must consider the request including:

  • The benefits of the requested changes for the employee and the business, weighing the benefits against any adverse business impact.
  • Avoiding discrimination, as a refusal could be indirect sex discrimination.

You must discuss the request with the employee as soon as possible, allowing them to be accompanied to a meeting – unless you have already agreed the request in which case a meeting may not be necessary. 

You must give a decision as soon as possible, at least within three months of the request, and the decision should be in writing.  

It is good practice to make a decision as quickly as possible so that you and the employee can plan her return to work and the employee can find the right childcare for the days she will be working.

You must consider each request individually and with an open mind, following the guidance in the ACAS Code:

The benefits of flexible working include retaining valuable members of staff, a happier, harder working workforce, a more flexible work force and often reduced staffing costs. There is a lot of research which shows that flexible working is good for morale so good for business

  • A conciliatory, ‘can-do’ and positive approach is best because it preserves trust and a good relationship with the employee and the workforce; 
  • Flexible working may seem an unnecessary burden for your business but most companies now grant flexible working to many of their employees. You must consider it for all employees, not just parents; 
  • If you cannot agree the particular request consider other options that would work for the business: part-time working (three to four days per week), job-sharing, compressed hours (35 hours in four long days), a variation in hours (for example leaving at five pm but then catching up in the evening), partial working from home (to save the commute), term-time working;
  • Consider how the change would work and how flexible you can be, for example:
  1. Your employee may prefer not to work Friday but too many others are off that day – could you suggest a different day? 
  2. Would partly working from home be viable?
  3. If they want to do a reduced week, ask if they are available if there is an urgent matter on their days/times off. But, you should not expect an employee to be available on non-working days unless this is necessary.
  • Consider a trial period if you have doubts about the viability of the request.
  • Consider and discuss with the employee:
  1. How will the change impact on other employees; you may want to discuss it with them if the employee agrees.
  2. Who will cover the work?
  3. Will it be necessary to recruit someone else and how easy will that be?
  4. Will there be issues around continuity?

See guidance from Acas on flexible working

You can refuse flexible working for one of the eight reasons set out in the ACAS Code, but if the refusal is not justified the employee may have a claim for indirect sex discrimination. The grounds for refusal under the flexible working procedure are:

  • 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
  • a detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work;
  • a planned structural change to the business.

If you refuse the request for flexible working without a good business reason this might be indirect sex discrimination. You should follow the procedure as set out in the ACAS Code on Flexible Working

Your employee may have a claim against you for:

  • Failure to consider the flexible working application in a reasonable manner.
  • Failure to notify the employee of a decision within three months.
  • Refusing the application without a specified business reason.

An employment tribunal may order you to reconsider the employee’s application or make an award of compensation up to a maximum of eight weeks’ pay, the pay being capped at £464 (as at January 2015).

Employees are legally entitled to take up to 52 weeks’ maternity leave but they can return to work at any time after the compulsory leave period, (which is two weeks immediately after the birth or four weeks for factory workers) provided they give eight weeks’ notice (or less if you agree.) 

You can ask an employee if she will return to work before she has used her full maternity leave entitlement but you must not:

  • Put pressure on her to return earlier than she wants, by, for example, repeatedly asking her when she is going to return.
  • Tell or threaten her that she will be disadvantaged, if she does not return earlier.
  • Disadvantage her if she changes the date she intends to return – though she must give the appropriate notice.

It is good practice to conduct a performance review before the employee goes on maternity leave or soon after her return. If you both agree, the employee could work a Keeping In Touch day and have her review on that day.  

It is advisable to agree the timing of the review with your employee. You must ensure that she is not disadvantaged because, for example, she has had pregnancy related sickness which may have affected her performance at work. You must ensure that she does not miss out on a pay rise or promotion because she has not had a review, as that may be maternity discrimination.

Last updated: 21 Dec 2018