Thanks for your patience. Generally, the employer has the legal right to decide when and if their employees take their holidays. This is a right under the Working Time Regulations 1998. In effect it allows the employer to refuse a request by an employee to take holidays on specific days and it also allows the employer to nominate the days when the employee takes their holidays.
If you decide not to return on 25 Dec but to delay your return from maternity, then you will continue to be off work on unpaid leave so you will not be paid for the time you were originally going to come back for. Therefore, if you are wanting to get paid from 25 Dec onward you would be expected to return to work.
In terms of the flexible working request, it is possible for the employer to only approve a short-term change, with a potential review at the end of that period. You cannot force them to issue a permanent change. However you can challenge them if you believe they have relied on the wrong reason to reject it on a permanent basis. Once an employer receives a formal request they must deal with it in a reasonable manner, ideally meeting with the employee to discuss it and, if rejected, communicate their decision within 3 months of the date the initial request was submitted. When rejecting the request, the employer is only able to do so by relying on any of the following grounds:
· Planned structural changes
· The burden of additional costs
· A detrimental impact on quality
· The inability to recruit additional staff
· A detrimental impact on performance
· The inability to reorganise work among existing staff
· A detrimental effect on ability to meet customer demand
· Lack of work during the periods the employee proposes to work
Ideally, the employer should also try and explain their decision in writing, such as providing information on why they believe the selected reason for rejection is relevant and they have relied on it.
It is important to note that when selecting the ground for refusal the legal test is mainly a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged as incorrect.
An appeal can be submitted once the decision is communicated. If the appeal is rejected then the only option left is to make a claim in the employment tribunal. A claim can only be made on one or more of the following grounds:
· The employer failed to hold a meeting, notify their decision within 3 months or offer a right of appeal
· The reason for refusal was not for one of the allowed reasons
· The rejection was based on incorrect facts
The claim should be presented to the tribunal within 3 months of either the procedural breach or of the date on which the employee is notified of the appeal decision.
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