Q We have an employee due to return from maternity leave in August who has requested to change her part-time work pattern, meaning she will be starting later. We will not know if this is workable until it has been in place for a few weeks. Do we have to agree to it?
A If the employee has at least 26 weeks’ service, she is entitled to seek a change to her working patterns through the statutory right to request flexible working in relation to the hours she will be working when she returns from maternity leave. This right is only available to her if she has not made a previous request within the last 12 months.
She does not have the right to work flexibly, just the right to request a change to her hours or location of work and you are under a duty to consider the request. The final decision, therefore, lies with you. This means that the control over the employee’s working hours remains with you and, from a wider perspective, you do not have every eligible employee deciding on their own working patterns.
If the employee has not requested the change by making an application under the statutory procedure, you should encourage her to do so. You will need to hold a meeting with her to discuss the application and she will need to have considered the effect that the requested change will have on you and how the effect might be dealt with.
If there are good business reasons why the proposed change to working hours would not be workable, you are entitled to refuse the request.
However, you can only refuse for one of eight reasons, of these three reasons include:
• The burden of additional costs;
• The inability to recruit extra staff;
• The inability to reorganise work among existing staff.
If you do not envisage that the amended work pattern will work, then you can refuse the request in its entirety. Alternatively, you may think that the employee’s suggestion may work with a couple of alterations that the employee agrees to, so you can attempt to rework the original request.
It is also possible to agree a temporary change to the working pattern to effectively give you and the employee a trial period to see how the business runs on the amended pattern.
Normally, any variation to hours will be a permanent change, unless it is expressly agreed that it will only apply for a short period of time.
In the case of a trial period, the employer and employee must agree to delay the normal time limit for making a decision on the change in hours and specify the date the extension is to end.
Therefore, you will have the opportunity to see how the amended pattern works. You will, however, still retain your right to refuse the request at the end of the trial period permitted the refusal is one on of the prescribed grounds.
Peter Done is managing director of law firm Peninsula