In this article, Dispute Resolution Associate, Olivia Parkinson covers everything you need to know about contesting an ex-spouses will.
Q: Do all employees have the right to request flexible working?
A: This right applies to employees who have been continuously employed for 26 weeks at the date of their application and who are either the parent of a child under the age of 6 (or a disabled child under the age of 18), or act as the carer for a spouse, partner, civil partner or relative. It is intended that from April 2009, this right will be extended to those employees with children up to the age of 16.
Q: What should I do if I receive a request from an employee to work part time?
A: You have a statutory duty to consider the request seriously and refuse it only if there are clear business grounds for doing so. There is a specific statutory procedure that you must follow. This involves meeting with the employee within 28 days of receiving the written application. The meeting should be held at an appropriate time and a place that is convenient to both parties. The meeting is intended to give the parties an opportunity to fully discuss the employee’s request and consider other alternative work patterns should there be a problem in accommodating the employee’s proposals. Within 14 days of the meeting, you must write to the employee to either agree to a new work pattern and a start date, or to provide clear business grounds as to why the application cannot be accepted and the reasons why this is the case. You must also inform the employee of the right of appeal. The employee will have a potential claim in the Employment Tribunal if you do not follow this procedure correctly.
Q: Can I refuse a flexible working request?
A: If you want to refuse the employee’s request, you can only do so for one or more of the following business reasons:
- Burden of additional costs;
- Detrimental effect on the company’s ability to meet customer demand;
- Inability to reorganise work among 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;
- Planned structural changes.
If you refuse the employee’s request on one or more of the above grounds, you must include an explanation of why the business ground applies in the circumstances. Although the Employment Tribunal cannot question the business reasons on which you have refused the application, the employee would have grounds to bring a tribunal claim if the decision is based on incorrect facts.
Q: Must I allow an employee returning from maternity leave to return to the same job on a part time basis?
A: An employee’s right to return from maternity leave is a right to return to her old job on the same terms and conditions unless, in the case of additional maternity leave, it is not reasonably practicable for her to return to her old job, in which case she has a right to return to a suitable and appropriate alternative job on the same terms and conditions. The right to return after maternity leave does not include a right to return to the same job on a part time basis. However, you have an obligation to consider any flexible working request seriously and can only reject it on one or more of the business grounds set out above.
Q: Can an employee bring any claims if I refuse their flexible working request?
A: Employees will have a potential claim in the Employment Tribunal if you fail to properly follow the statutory procedure, or if your decision is based upon incorrect facts. Although you are entitled to refuse a request for flexible working by giving one of the prescribed reasons (see above), you should be careful not to adopt a potentially discriminatory policy by insisting that a certain job cannot be performed on a part-time basis. In this situation, the employee may bring an indirect sex discrimination claim, arguing that you applied a provision, criterion or practice - i.e. that the job is full time - which has a disproportionate impact on women because they are more likely than men to have primary childcare responsibility and fewer women than men will therefore be able to comply with it. Unless you can objectively justify the requirement, the employee will succeed in her sex discrimination claim. It is also possible that an unjustified refusal of the request may give rise to a claim for constructive dismissal.
