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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48512
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I'm currently on maternity was planning on my return date

Customer Question

I'm currently on maternity was planning on my return date being 25th Dec as I have 3 bank holidays from earlier in the year that i can claim but can't carry over to Jan. I have 16 regular holidays I am allowed to carry over and use by end of March. I am currently in dispute with how I can use them it was originally agreed these were to be taken in no more than 3 days at a time. My boss has since told me I can't take anytime between mid Jan and end of Feb. I was wanting to take Monday's off in order to save on childcare he has approved March Monday's only. I have suggested that I be allowed to use 4 of the days and carry them over to take Monday's in April. He has refused. If I decide not to return now until a later date will I lose the weeks pay at the end of December? Also I have requested flexible working from Easter as I normally finish at 6 but need to collect my son by 6. He has said he will consider it only on a 3 monthly basis. My office has actually been closed since I went on maternity so do not see what difference being flexible makes he will only reduce my hours, where do I stand on this? I would like something set in stone not a 3 monthly decision to be made.
Submitted: 1 month ago.
Category: Employment Law
Expert:  Ben Jones replied 1 month ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 1 month ago.

How long have you worked there for?

Customer: replied 1 month ago.
10 years
Customer: replied 1 month ago.
I had emailed him 2 months ago addressing these points he's only just responded
Expert:  Ben Jones replied 1 month ago.

thanks leave it with me please and I will reply within the hour

Expert:  Ben Jones replied 1 month ago.

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.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss how to make a claim if necessary. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 month ago.
I guess my main issue with the holidays is that he didn't specify when drawing up my maternity contract that there would be a black out period as such. He just stated that the 16 days should be taken by 31st March and not to be taken in 3 or more consecutive days. should he not have been clearer in his contract as its nearly impossible for me to actually take all of my holidays now he has ruled out 6/7 weeks. Staff have previously been granted time off in this period too. I have attached the contract. He has now back tracked and told me to take them as a block as it suits him better.
Customer: replied 1 month ago.
Also if I decided to delay going back until March could he refuse my holidays to be taken just prior to my return? So I got paid for them in February technically taking them as a block? Thank you!
Expert:  Ben Jones replied 1 month ago.

He ‘should’ have been clear bit not a legal requirement to state this ‘blackout’ period as you call it. I would say the only other way to challenge it is to say that the fact you were on ML for all this time means you have not had the opportunity to take these holidays at any other time and now you are being penalised for it by not being allowed to take them during what makes up quite a large period of the time available within which to take them. That could amount to indirect maternity discrimination.

The same could apply if you delayed your return and the employer refused you to take the holidays before the end of the year - in that case they should at least allow you to carry them over

Customer: replied 1 month ago.
I sent an email this morning stating I was reconsidering coming back on 2nd Jan. My maternity doesn't end until 30th April. I feel quite threatened by his email in terms of job security and holidays and telling me I need to agree a start date with him and it needs to be set in stone??
Expert:  Ben Jones replied 1 month ago.

Thank you what do you specifically wish to know about this please?

Customer: replied 1 month ago.
Can he send me emails like this saying he's going to replace me when I haven't given him an answer about my return and stating he now needs to agree my return date?
Expert:  Ben Jones replied 1 month ago.

Not really. You have the right to vary your return to work date if you wanted to, as long as you give the employer at least 8 weeks’ notice. That should not result in them employing someone else permanently to replace you. It can easily lead to maternity discrimination on their part.