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Thursday 29 September 2016
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Parental leave and flexible work

Insight: Legal

I have a recollection that when I was a little boy in the early 1960s, not only did my mother not work but also my friends’ mothers did not work, and I seem to think there was something in place in the days of my grandmothers that, if they had worked, they gave up upon marriage. How odd this all appears nowadays with the workforce comprising many millions of women and huge numbers of working mothers.

Maternity rights have been introduced and extended. There is adoption leave and pay; paternity leave and pay; parental leave; dependent leave; and a right to request flexible working. Further changes are on the horizon. However, whatever the law might state, there are significant tensions when some employees insist they should not work certain hours or provide cover, and this will often fall upon those who have no children or whose children have grown up.

Maternity leave is divided into ordinary maternity leave and additional maternity leave.  Ordinary maternity leave is for a period of 26 weeks; additional maternity leave is for a further period of 26 weeks. All employees are entitled to take both ordinary maternity leave and additional maternity leave. It is assumed that, unless an employee gives notice to return early, she will take her full maternity leave, namely 52 weeks.

The law provides that, should an employee choose to return after her ordinary maternity leave, she has the right to return to the same job. If the employee chooses to return after additional maternity leave, then she has either the right to return to the same job or to an equivalent job. In practice, the employee should always be allowed to return to the job she had before taking her maternity leave, unless it is not reasonably practicable for her to be allowed to return to that job. This is a complicated legal area, and the onus would be on the surgery to show that it was not reasonably practicable to allow the employee to return to her old job. This is far from easy.

However, it is not usually the employer who might wish to change the employee’s job. Frequently, those returning from maternity leave, or those who have young children, might wish to make alterations to their contracts for the purposes of childcare.

Employee application requirements
Under the legislation, both male and female employees can make an application for flexible working. The right is to make an application, and not necessarily for that application to be approved.

In order to make an application, there are a number of procedural requirements: first, the employee must have at least 26 weeks’ service; second, the applicant must either have or expect to have responsibility for the child, who must normally be under 17 years of age. If the child is disabled, then the child needs to be under 18 years of age. Third, the application must be for the purpose of caring for the child.

Fourth, the applicant must not have made an application for flexible working during the previous 12 months. Finally, the applicant must be the mother, father, adopter, guardian or foster parent of the child, or be married to, or the (civil) partner of, one of the foregoing.

Assuming the applicant fulfills the above requirements, and is thus eligible to make a request for flexible working, the employee can seek many changes to his or her contract
of employment.

An employee can apply for a variation of contract in respect of the hours he or she works, the time he or she works, and the place where he or she is required to work. This means that an employee might normally seek part-time working, but surgeries should appreciate that an employee may request to work from home, to undertake job sharing, to work flexi-time, to work only during term time, to alter shift pattern working (perhaps covering only mornings or only afternoons), to have time off in lieu introduced (where the surgery does not currently offer it), or perhaps to have compressed working hours (for example, working 10 hours per day over three days rather than six hours per day over five days). This list is by no means exhaustive.

The application must be made in a particular way: the employee is required to submit the application in writing and date it. The employee should also state that the application is one for flexible working, and whether there has been any such application in the previous 12 months. In addition, the employee should state what change to the contract is sought, and when it is hoped that the proposed change should become effective. The employee should also explain what effect the change would have upon the surgery and how any such effect might be dealt with. The employee is also required to specify how he or she meets the relationship requirements with the child.

Surgery response
If the employee makes an application for flexible working, the surgery is required to deal with it very formally. Of course, if the surgery agrees to the request, there is no need to hold a meeting. If, however, the surgery does not agree to the request, there is a legal requirement to call a meeting within 28 days of the application. The timing and location of the meeting must be convenient to both the surgery and the employee, and the employee must be informed that he or she has the right to be accompanied to the meeting by a fellow worker.

At the meeting, the employee’s request for flexible working needs to be considered, and the request should be explored in depth. The surgery should always look as to how it might accommodate such a request, and always be flexible.

If the surgery accepts the request, it should notify the employee within 14 days of the date of the meeting, and the employee’s contract should be altered accordingly. If the surgery declines the request, the employee must be advised within 14 days of the grounds for refusal, along with a sufficient explanation as to why the grounds apply. The employee must also be notified of the right of appeal. An employer can refuse a request for flexible working only on specified grounds, and these are:

  • The burden of additional costs.
  • Detrimental effect on ability to meet patient demand.
  • Inability to reorganise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during periods the employee proposes to work.
  • Planned structural changes.

As stated above, the surgery is required to provide an explanation as to why the grounds apply, and this will require a paragraph or two as to why the application has been declined upon the particular ground or grounds.

Hardly surprisingly, what is written by the surgery can be a trap for the unwary, and it is wise to be very careful as to the explanation provided. The explanation may be subject to legal scrutiny and it is possible for a request to work flexibly to be declined within the law and yet be held indirectly sexually discriminatory under other laws.

If the request has been declined, and the employee decides to appeal, then he or she must do so within 14 days of the date on which the surgery has given the decision. The surgery must then hold a meeting within 14 days of the date on which the notice of appeal is given.

Again, a meeting must be held, to which the employee has a right of accompaniment. The surgery must, as previously, give the decision within 28 days, if declining the appeal. As previously, the grounds for refusal of the request must be given, and an appropriate explanation must be provided.

Further potential employee action
That is the end of the internal process, but an employee has a right of complaint to an employment tribunal, and can make such a complaint if the surgery failed to comply with any procedural requirement, failed to use one of the required grounds for refusal, or based its decision to reject the application on incorrect facts.

Should an employee be successful, tribunals’ powers are not perhaps as wide as one might expect. A tribunal may make an order requiring the surgery to reconsider the employee’s request for flexible working, and it might also make an award of compensation. However, the compensatory award is limited to a period of a maximum of eight weeks’ pay, and that pay is subject to the statutory limit of a week’s pay, which is currently set at £430 per week, irrespective of the employee’s salary if he or she earns more.

What is far more worrying is if an employee brings an indirect sex discrimination claim. If deciding to act in this manner, the employee need not comply with any requirement to have 26 weeks’ continuous service, could have made more than one application in the previous 12 months, and need not make the formal application as required for flexible working. Moreover, the surgery will need to be able to ‘defend’, on an altogether different level, its reasons for declining the request.

Perhaps most worryingly, there is no limit on the amount of compensation the employee can be awarded if successfully bringing an indirect sex discrimination claim. This will be examined in the next article.

Darius Ferrigno has provided employment law advice to GP surgeries for more than 20 years, as well as speaking at numerous seminars and conferences for those within primary care. He is the author of a number of specimen legal templates and books that are used extensively within primary care.

Darius’ second article on this topic will be published in the Summer 2012 issue of Management in Practice.