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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50138
Experience:  Qualified Solicitor
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I have an employee who is soon returning from maternity leave.

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I have an employee who is soon returning from maternity leave. I have already granted her the right to change her hours from 8am-5pm to 11am- 8pm to suit her childcare needs (even though I told her I'm not happy with her working this shift as from 5pm-8pm there is insufficient work).
After agreeing to this, she is now demanding the same days she used to work - Mondays & Tuesdays. When she went on maternity leave I employed another person to work Mon/Tues/Wed. Therefore, I need the staff member coming back from maternity to do Thurs/Fri. She is refusing & wants her old days back.
I have spoken to the other member of staff to see if she can swap to Friday & she also refused. I am therefore facing a dilemma. Please advise.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

Do you mean she wants to work the new hours but on the old days she used to work?

Customer:

yes

Ben Jones :

How much ML is she taking?

Customer:

39 weeks

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

According to Reg. 18 of The Maternity and Parental Leave Regulations 1999, an employee who takes Additional Maternity Leave (i.e. between 6-12 months off) is entitled “to return to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.”

This means that there is no guarantee of a return to the job she performed before going on maternity leave. If the employer can show that it is not reasonably practicable to allow her to return to that job, they need to find something that is both suitable and appropriate for her to do instead.

In this case she has requested to do specific hours, which you have agreed on but she has also requested to retain the days she used to work on. Whilst she can certainly make that request, you do not have to accept it, especially if you can show that this is not possible due to one of the accepted reasons for rejecting a flexible working request. These are:



  • 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


In addition, the employer has a duty to explain their rejection in writing. They must state why the specific business ground applies in the circumstances and include the key facts about their decision. These should be accurate and relevant to the reason used.

However, when selecting the ground for refusal the test is 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.

So in your case you could for example use the reason that it is not possible to reorganise work among existing staff and reject the employee’s request to work their old days based on that. You can still allow them to work the new hours if that is acceptable but you will have to make it clear that it does not mean it would be on the old days and if that is not possible you will have to continue negotiating until you find an acceptable agreement.

Customer:

Thank you

Ben Jones :

you are welcome

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