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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
situation you find yourself in. The information posted on this site is for
general information only, is based on |
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Question: |
My employee wants to
return to work part time after maternity leave. I want to tell her it’s not
on. Can I? |
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Answer: |
Under the Flexible Working Regs, an employer must follows
a fixed procedure in order to reasonably consider a request from parents with
children under the age of 16, including
a mother returning to work part time after maternity leave. If the
employer gets it wrong a mother returning to work after maternity has the right, to claim indirect Sex
Discrimination as well as under the Flexible Working Regulations. In other words, women returning from maternity leave have
rights under: ·
The
Flexible Working Regulations ·
The
Sex Discrimination Act (to be replaced by the Equality Act from 1st
October 2010) In Hardy and Hansons plc v Lax (2005) (Court of
Appeal) Ms Lax was a retail manager with a brewery company. She asked to come
back from her maternity leave on a part-time job-share basis. The brewery
turned her down and made her redundant. She took them to the Employment
Tribunal and won £60,000 for indirect discrimination. The Tribunal were less than impressed by the brewery’s
argument why job-sharing would not have worked. The brewery appealed arguing
that a tribunal should give them a ‘margin of discretion’ in considering
their reasons (similar to the ‘range of reasonable responses’ argument in
unfair dismissal cases) The Court of Appeal said that under the Sex Discrimination
Act (to be replaced by the Equality Act from the 1st October
2010), it’s up to the employer to show that the proposal is justifiable
irrespective of the sex of the person to whom it is applied. This must be
objectively justifiable despite the discriminatory effect. This does not
permit ‘the margin of discretion or range of reasonable responses’ argued. However the principle of proportionality
requires the tribunal to take into account the reasonable needs of the
business. In other
words employers need to be incredibly careful when considering requests to
work part time by mothers returning from maternity leave. They should now
follow the procedure laid down by the Flexible Working Regs to consider such
a request and if rejecting, should make sure they have clear documentary
evidence to substantiate any such decision. See also our
posting on the right of parents with children under the age of six to ask to
work flexibly under the Flexible Working
Regulations. Any employer considering a request from a mother in these
circumstances should follow the procedure laid down in the Flexible Working
regs. Last
reviewed: July 2010 |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated by
the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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