Ask an Ealing Expert - Louise Taft of JR Jones Solicitors

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Parents' rights at work

After last month’s article on maternity and paternity leave, this month I run through parents’ rights once they have returned to work and pregnant women’s right to a risk assessment.

Flexible Working

Parents of children under 6 or disabled children under 18 and carers of adults have the right to request flexible working from their employer if they:
(a)have been employed for 26 weeks continuously;
(b)are not an agency worker or in the armed forces; and
(c)have not made an application for flexible working in the last 12 months

Carers are covered if they care for a spouse, partner or relative or other adult living at the same address.

Flexible working might be a reduction or variation of working hours or homeworking. It might include flexi-time or annualised hours, working compressed hours or working only in school term time.

There is a formal procedure including a written application. The employee must explain the reason for the request, confirm they are eligible and state what they want. Employees would be wise to provide as much information as possible about how they think the request can work, with consideration of effects on the employers’ service delivery and their colleagues. Detail about caring responsibilities might enable an employer to consider a compromise solution if they can’t meet the employee’s suggestion. There is a form available on the Department for Business Enterprise and Regulatory Reform website: www.berr.gov.uk, which is helpful but not compulsory.

Once the request has been received, the employer must meet with the employee within 28 days and write to the employee within 14 days of the meeting with the decision. The decision must either set out the new arrangements if the employer agrees to the request or the reason for refusal if they do not. An appeal is available within 14 days if the employee is not happy.

There are 8 “business reasons” an employer can refuse a request:
burden of additional costs;
detrimental effect on ability to meet customer 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 the periods the employee proposes to work; and
planned structural changes.
The employer must take the request seriously and properly consider it. An employee can complain to an Employment Tribunal if the employer breaches the procedure or doesn’t properly consider the request. A woman refused flexible working may have a claim for indirect sex discrimination unless the employer can justify the refusal as proportionate to the needs of the business.

It is therefore important that employers take requests seriously, whether they are made formally or informally. Employers should not be closed to requests to work flexibly: it really can help retain good staff who otherwise might have to leave to pursue that flexibility elsewhere. Employers should think whether there is a suitable compromise that might help both parties. Don’t be afraid to have a trial period. Equally, if there is a genuine business reason to refuse the request, an employer who listens to the employee but explains why they can’t agree should have nothing to fear from the legislation.

Parental Leave

Parents with one year’s continuous service with their employer can take up to 13 weeks’ unpaid leave in the first 5 years of their child’s life. Leave must be taken in blocks of a week or multiples of a week. Employees must give 21 days’ notice. Employers can ask employees to postpone the leave by up to 6 months if there would be undue disruption to the business. Employers wishing to postpone leave must do so in writing no later than 7 days after the request. Employers can’t postpone leave if the parent wishes to take it immediately after a period of maternity, paternity or adoption leave.

Many parents will change job within the first 5 years of a child’s life. They can be asked to provide proof that they have not already used their entitlement as the 13 weeks applies no matter how many employers an employee might have.

There are similar rights to return to the same or similar job after parental leave as there are after maternity leave – please see last month’s article.

An employee dismissed or “subjected to any other detriment” because they want to take parental leave has a claim to an Employment Tribunal.

Pregnancy Risk Assessments

A little known and little used provision of health and safety legislation is the right of every pregnant woman to a risk assessment if her work could involve risk to her or her unborn child. Given the potential risks even of a benign office job (stress, prolonged sitting or standing, mental or physical exertion), employers would be safer to risk assess every pregnant woman’s job.

Employers needing help with a risk assessment can get it from the Health and Safety Executive: www.hse.gov.uk. The employee’s GP or midwife might also be able to help.

Risks to health must be removed but employers with good but perhaps patronising intentions should be careful: a railway worker recently won a sex discrimination claim when her bosses demoted her when they thought she couldn’t cope with acting up as manager whilst she was pregnant. Employers should discuss their findings with the employee and ideally seek the employees’ input to the assessment itself.

If adjustments to the job can’t remove the risk, the employee must be offered suitable alternative work or suspended on full pay whilst the risk is apparent (in most cases this will be the duration of the pregnancy).

November 30, 2007