Can an employee returning to work from maternity leave dictate when she is prepared to work?

Question

She previously worked full time and such a position has been kept available for her. However, she now wants to work only two days per week. This could be accomodated but only on specific days, which would be Wednesdays and Saturdays. She only wants to work two midweek days - of her choosing. Can she be told that no such position exists and that she must return to her previous full time job or nothing?

Answer 1

"The right to request flexible work and the duty to consider".

This is the phrase that sums up both the new right under law, and its limitation. However, it is important to note that the new right for employees is a right to ask the employer to be able to work flexibly. There is no obligation on the part of the employer to grant this right, only to consider.

The process stipulated is intended to introduce safeguards that will ensure the request is considered seriously, and that there will be no adverse impact on the employee for requesting it.

Under the regulations, employees can request to

change the hours they work;
change the times when they are required to work; or
work from home (whether for all or part of the week).

But it appears to be primarily up to the employee to come up with the appropriate option.

The changes made will be considered to be permanent, unless otherwise agreed. So the employee has no automatic right to change back to the previous working pattern. And similarly, the employer has no automatic right to end the new working patterns.

Answer 2

Yes - you are obliged to keep open her previous position. She can request a reduction in days - but there is no legal obligation on you to comply with this. As 'happy' says, an employee can put in writing a request for flexible working hours/days - but again, your only obligation is to consider this and comply with it if it can reasonably be managed. If you feel that recruiting someone to work a 3 day week to cover the rest of the job is not reasonable, then you do not have to comply. The employee making the request would have to make a suggestion as to how this adjustment could be managed.
A way round the problem might be to advertise a position for 3 days a week covering the days she does not want to work and explain that if you can get someone to cover this time then you will agree to the request, but in the meantime the offer is only to work full-time or the two days you have suggested.

Answer 3

we had a similar situation some time ago.

My understanding is that the employee only has the right to return to their old job.

This raises one issue, while the job was held open for her, did someone else do it and were the conditions varied for that temporary person?
If the conditions did not vary then the position was held open and she returns to it as it was when she left.

It very much sounds to me as though she wants a completely different job which your company may or may not be able to offer her.

Answer 4

Wouldn't it be nice if we could ALL dictate our own hours? My goodness....

The employer still calls the shots here. They have fulfilled the legal requirement to offer her the position she held prior to her leave. They have even offered to accommodate her wish to return in a part-time role although there is no legal requirement for them to do so. If she doesn't want to work the position that the employer has available, then she has in effect chosen to voluntarily resign her post.

Now if you'll excuse me, I need to begin drawing up my list of demands....no interruptions between 10 and 3, no calls from the boss after 5 p.m., no annoying people in my office......you're right, this IS fun.....!

Answer 5

As an employer - you have to make what is termed as reasonable adjustments to suit requests from employees (note not dictation or demands)

You have to have a lot of proof (business case/needs) as to why you require her to work on the days you want.

Equally she has to have some degree of flexibility as it is her that is changing her mind not you. (this may need to be pointed out to her in a polite way)

Also you may need to look at the rest of your workforce - are these options open to others? Are other members of staff with family given flexible options to thier contract without going on maternity leave.

Check the acas website if still got questions or the cipd website for legal matters. really good sources.

Good luck

Answer 6

The employer has complied with legal requirements in keeping the job open. If she has now decided that doesn't suit then it's not the employers problem.

As long as the employer is prepared to consider reasonable requests, they have fulfilled all their legal requirements. Employers do have rights too, and any requests have to be practical within the business framework.

Answer 7

once the employee has used up her time under the family leave act, then the employer is under no obligation to hold her position past that point, thus if she is unable to return to work full time in same capacity, it will be considered a voluntary quit

Answer 8

Yes, she can be told at this point that she has to return to her regular shedule or nothing. If she has a doctor's documentation that she needs a reduced work schedule, and you can't accomodate her schedule, then she has the option of applying for disability or unemployment benefits.

Answer 9

I believe the Family and Medical Leave Act provides for up to 16 weeks off and nothing more.

Answer 10

This question is best posed to an attorney specializing in labor law. That said, I'd guess that if the company is willing to make a reasonable accomodation, she would have to accept it or quit.