Changing working hours for new mothers
Stephanie Slanickova, employment law specialist at solicitors Tarlo Lyons, examines the potential pitfalls of refusing to allow a woman to change her working hours following maternity leave.
The problem
The full-time general manager of a large hotel and her two experienced full-time assistants work irregular shifts, ensuring 24-hour management cover is provided. The general manager is on maternity leave, and her duties are being covered by a temporary locum manager. She wishes to return to work on both reduced and fixed hours, due to her new childcare responsibilities. The hotel owner is not keen on the idea.
The law
There is no statutory right for a full-time employee, following maternity leave, to return to work on a part-time basis, nor to work fixed shifts where she had not previously done so. However, in denying this, an employer may find itself in contravention of the Sex Discrimination Act 1975 (SDA), which prohibits indirect sex discrimination.
Indirect sex discrimination occurs where an employer imposes a "provision, criterion or practice" which (a) considerably fewer women can comply with than men, (b) cannot be justified for reasons other than the fact of her being a woman, and (c) is to the woman's detriment. (This section applies equally to men.) A "provision, criterion or practice" covers employment as well as formal and informal workplace practices.
Expert advice
Although the new mother has no automatic right to return on varied terms or conditions, the hotel owner must consider her request seriously and must not reject it out of hand. Even this may not be enough, as he or she would need to be able objectively to justify any refusal to allow her to work part-time fixed shifts.
To avoid falling foul of the SDA, the hotelier must have a sufficient operational or business need for the general manager to continue working the same hours as before. In the present circumstances, it is understandably essential for the hotel to have 24-hour cover. However, such cover could perhaps be provided by a regular shift rota.
In relation to the mother's request to work reduced hours, the owner would again have to justify any refusal to allow her to do so. If she wants to reduce her shifts by only a few hours a week, then it may be that the two remaining assistants are keen to work overtime.
If she wishes to reduce her hours significantly, the hotelier could consider employing another manager on a part-time basis. The question of the number of hours to be worked by the general manager will really be a matter for negotiation between her and the owner, provided that any insistence by the owner on the number of hours worked can again be objectively justified.
Employers should note that the extra administrative cost alone in employing part-time workers would be unlikely to fall within the defence of objective justification.
The employer should also be aware that, if he has consistently allowed employees to return on a part-time basis on previous occasions, the right to return on such a basis may have become part of his employees' terms and conditions (contract) of employment due to custom and practice. Therefore, any refusal could lead to an additional claim for breach of contract.
Beware!
There is no limit to the amount that an employment tribunal can award for sex discrimination.
Check list
- Give serious consideration to any request from a worker returning from maternity leave to work fixed shifts, reduce their hours, or job-share.
- Only refuse any such requests after careful consideration and on the basis of solid commercial reasons.
- Conduct a careful examination of both formal and informal procedures and practices to identify and address any potential discrimination.
- Watch out for new legislation on flexible working hours for parents following the recent proposals made by the trade and industry secretary in response to a report prepared by the Work and Parents Taskforce.
Contact
Tarlo Lyons
020 7405 2000
stephanie.slanickova@tarlolyons.com
- Further information on maternity leave is available from ACAS at www.acas.org.uk or the DTI at www.dti.gov.uk