Business Brief: Managing Maternity Rights

Last Updated Feb 19, 2010 5:28 PM EST

Nick Hine, partner at law firm Thomas Eggar, responds to your employment law questions:
For the last year, one of my team has been off on maternity leave. She was a capable worker who was missed at first, but we had a temporary replacement to fill the breach. My permanent employee is now planning to come back part time three days a week, which means I stand to lose some resources in the team. Do I have to agree this?
-- Name witheld.
An employee on return from maternity leave has a statutory right to request to work flexibly to help look after their child.

It is not a right though, there is simply a statutory framework in place through which an eligible employee can request to work flexibly.

The request can be made by an adult to care for a child or another adult, but they must have at least 26 weeks continuous service and they should not have made a request to work flexibly in the past year.

The nature of this request could involve hours of work, when they arrive and leave and where they work.

Any eligible employee who wants to change their working conditions in these ways must make their request in writing.

An employer must meet with the employee within 28 days of receiving the request to discuss the application and within 14 days after the date of that meeting write to the employee to either agree to the new proposed work pattern and set a start date, or to provide grounds for rejecting the application.

If you reject the application then your employee has a right of appeal and must do so within 14 days of the original application being refused.

You must arrange an appeal meeting within 14 days of receiving that notice and then 14 days after that appeal meeting you must notify the employee of your decision.

There are effectively eight grounds for rejecting a request and these include:

  • Burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to re-organise work amongst existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on the employee's quality of work.
  • Detrimental impact on the employee's performance.
  • Insufficiency of work during the periods the employee proposes to work.
  • Planned structural changes that would render the employee's proposed pattern unworkable.
If you refuse a request then your employee can make a complaint to an Employment Tribunal potentially for sex discrimination and also for constructive unfair dismissal if they resign as a result.

The Employment Tribunal would expect you to have properly considered the request and so if any employer refuses any application they must have a sound reason for doing so. This area is quite complex and I would suggest you take advice if these circumstances arise.