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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 57230
Experience:  Qualified Employment Solicitor
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I requested flexible working post maternity leave. This has

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I requested flexible working post maternity leave. This has been refused. During my maternity leave there was some reconfiguration in the department. This has impacted on my flexible working request. Is there anything that can be done to appeal the refusal of the flexible working?
Assistant: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: Manager has refused the request stating the work cannot be reorganised as there are changes happening. I was 1 if 4 managers andthis number went down to 2 during my maternity leave. This is the main reason for refusal. I am in the process of submitting an appeal.
Assistant: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Have not spoken to a lawyer.
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: I am a employee. I am a member of the unite union.
Customer: replied 5 months ago.
I had informal meetings where I made my intentions to return to work part time was made known to my line manager. The decision to not replace the 2 outgoing managers was made post this information being made available.

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

How long have you worked there for?

Customer: replied 5 months ago.
7+ years
Customer: replied 5 months ago.
Started in Aug 2011

Did your job change during the restructure?

Customer: replied 5 months ago.
The workload has increased as there are less managers but the job essentially is the same. Instead of managing one section of the department I now have to manage 2.

Thanks. 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

Therefore, unless you can show that the claim was for one of the above reasons, it is unlikely a formal tribunal claim can be made about it. If you do though, 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.

Does this answer your query?

Customer: replied 5 months ago.
The refusal was based on the fact that if I was to go from full time to part time then there aren’t sufficient staff available to redistribute the work. This is due to the restructure. The question would be that should they have considered my flexible working request when deciding to reduce the number of managers as they would have been aware at the time that this would make it difficult to accommodate my request.

if that is correct, meaning that there really won't be sufficient staff to take on the reduced duties, the fact that there was a restructure whilst you were away would not really impact it - the employer would still be able to rely on this reason, assuming it is correct and genuinely would apply. However, did you make the request before the restructure?

Customer: replied 5 months ago.
I believe so. I have not been told exactly when the decision was taken to not replace the outgoing managers. I have had 3 different line managers between my initial meeting in March 2018 and my return in August 2018.

you can ask for details to see if that was the case. strictly speaking it does not mean they have acted unlawfully though as the employer can still restructure as necessary, even if someone's flexible working request is impacted in the process. Your best argument would be if you can show that you had applied before the restructure, the employer could have easily jigged managers around to approve that and it would have made no real difference to the outcome they achieved anyway.

Customer: replied 5 months ago.
Ok. Thank you for your advice Ben.

you are most welcome

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