Dayna Rodrigues, Blandy & Blandy
Managing childcare needs and work can be stressful or a source of worry for parents. Below, we have set out our summary answers to a number of commonly asked questions and scenarios that employees may find themselves in. Please note that situations involving maternity/pregnancy/flexible working rights (and possible claims under the Equality Act) are often complex and are very fact specific. Accordingly, the summaries below should not be relied upon as a substitution for taking full legal advice.
Scenario 1 : I am the primary caregiver in our household. My old manager was really relaxed and would let me work from home whenever I needed, usually to do school drop-off and pick-up. My new manager has told my team that we all need to be in the office at least four days a week as a minimum from 9.00am to 5.00pm; can they do this?
- Review your contract of employment
The starting point is always your contract of employment, and it is worth reviewing this. However, also consider whether what was set out therein has been varied in practice by consent of the parties. For example, has the old manager emailed to confirm that the varied arrangement is agreed? - Try to resolve your concerns informally in the first instance
Some employers adopt an informal, flexible approach to adjustments to your working arrangements which are left to the discretion of your line manager. The new manager may simply not realise what your pre-existing arrangement is and why. A gentle reminder may be all that is needed to resolve matters.
Consider making a flexible working request
You have a day one right to request changes to your working arrangements such as your working hours, where you work and the days you work. Your employer should reasonably consider your request and let you know their decision but may be able to reject it if they have a good business reason.
The gov.uk website provides some useful, straightforward guidance on applying for flexible working.
If you consider that your employer is unreasonably refusing your request, you could see if they offer an appeals process and try appeal the decision. - Formal grievance
If informal discussions and/or the flexible working application process and/or appeal do not resolve matters, you could consider raising a formal grievance to try and resolve your concerns. Your employer would have to investigate your concerns, with due regard to their grievance policy and procedure and the Acas Code of Practice on disciplinary and grievance procedures, and inform you of their outcome. Should you disagree with the outcome, you may have the opportunity to appeal. - Pursue a claim in the employment tribunals
The employment tribunals still tend to recognise that mothers have primary responsibility for childcare. If your employer’s policy or practice means that women are put at a particular disadvantage compared with their male colleagues and your employer cannot show that their policy or practice is a proportionate means of achieving a legitimate aim, the policy or practice could amount to indirect sex discrimination, and you may have a potential claim for sex discrimination in the employment tribunals.
Scenario 2: I am due to go on maternity leave soon, but I have heard rumours that my employer may be restructuring. I am worried that my job may no longer exist when I return to work; can they make me redundant?
- Your employer is required to consult with staff if they will be making redundancies. Even if you are on maternity leave, your employer is required to keep you fully updated during any redundancy process and to give you the opportunity to share your views and reply to any redundancy proposals.
- The Equality Act 2010 (EQA), provides protections against being treated unfavourably because of your pregnancy or because you have or will take maternity leave. If your selection for redundancy is because of your pregnancy or because you have exercised, or will be exercising, your right to maternity leave then this may amount to pregnancy and maternity discrimination. You therefore could have a potential claim in the employment tribunals.
- The Maternity and Parental Leave etc. Regulations 1999 (MAPLE) provide for certain protections in these circumstances. In the first instance, you are entitled to return to your job. It may however be the case that it is genuinely not practicable for your employer to continue employing you under your existing terms of employment. However, MAPLE entitles you to be offered a suitable vacancy where available. This may be with your employer, their successor, or an associated employer and must take effect immediately on the termination of your old employment. You should consider whether the alternative role offered is in fact suitable such as the type of role and terms and conditions offered.
Scenario 3: My role has been made redundant during my maternity leave and the alternative role that they have offered me is on lower pay and in an area I have no experience in. I am aware of other more suitable vacancies from my friend in HR but my boss is trying to persuade me to give this unsuitable role a go; is this right?
Under MAPLE, if your role is made redundant and you are offered alternative employment it must be suitable and appropriate for you to do in the circumstances and the new terms of employment must not be substantially less favourable to you than if you had continued under your previous terms of employment.
If formal and informal grievance processes are unsuccessful, you may have a potential claim in the employment tribunals under MAPLE.
Scenario 4: I am going on maternity leave in a week and my manager has not tried to discuss any arrangements for keeping in touch with me, nor given me any assurances over what will happen to my matters when I am off. Do they have to keep in touch with me?
- You and your employer have the right to maintain reasonable contact with each other ‘from time to time’ during your maternity leave. There are no steadfast rules or legal requirements as to how this should be done. It is best for you and your employer to have the discussion as to what this will look like before you go on maternity leave. Even if you have had this discussion, if the arrangement isn’t working, you can try to agree a new arrangement.
- Additionally, you have the right to request up to 10 keeping in touch (KIT) days during your statutory maternity leave, which if agreed by the employer, will not bring your ordinary or additional maternity leave to an end. Notwithstanding this entitlement, your employer cannot require you to do KIT days. You are not permitted to work however during the first two weeks of compulsory maternity leave which starts on the day of childbirth. The rate of pay for a KIT day is a matter for agreement between employee and employer but will typically be the contractual rate of pay (depending on the work done/what is agreed between the parties).
Our Employment Law team can advise on your rights and your individual position and help you to pursue matters where appropriate. Blandy & Blandy is a leading Thames Valley law firm with offices in Wokingham, Henley-on-Thames and Reading.
For further information or legal advice, please call 0118 951 6888 or visit www.blandy.co.uk.
