Returning to work after maternity leave is difficult and comes with both emotional and practical considerations. Many parents want to understand flexible working after maternity leave, as this may be a solution to managing work alongside childcare responsibilities. What are your rights after maternity leave, and what happens if your employer refuses? In this article, we explain how flexible working works in practice, your rights when returning from maternity leave, and what steps to take if your request is rejected.
Understanding Flexible Working
What is flexible working?
Flexible working simply means any change to your usual working pattern that helps you better balance work and personal commitments. This could include:
- Part-time hours.
- Job sharing.
- Working from home or hybrid working.
- Compressed hours (e.g. a five-day week worked over four days).
- Flexitime or staggered hours.
- A change to your start and finishing time.
As of 6 April 2024, all employees in the UK have the legal right to request flexible working from day one of employment. This is a change from the previous rule, which required 26 weeks of continuous service.
This is known as a statutory flexible working request, and employers must deal with it in a reasonable and timely manner.
Some other key points:
- You can only make 2 requests in any 12-month period.
- You can only have one live request at any one time.
How To Make a Flexible Working Request
There is no specific form to complete, but it may be sensible to check your internal policies or handbook to see if your employer has any guidance on who to send the request to (this may vary).
Otherwise, to make a statutory request, you must:
- Make the request in writing.
- State that it is a statutory flexible working request.
- Specify the change you are seeking (e.g. part-time hours, remote work).
- State when you would like the change to begin.
- State whether you have made a flexible application previously and if yes, when.
Your employer must consider your request reasonably and respond within two months (unless a longer timeframe is agreed).
Practical Tips to Support Your Request
What we set out above is what is legally required to make a flexible working request. However, where the above is all you need, some of the points below, where not legally required, are worth considering, as they may strengthen your application. For example, there was a previous requirement to explain how you believe the change might affect the business and how that could be dealt with, but even though that requirement has been removed, such information is often helpful.
Explain your reasons for requesting flexible working
Although you are not legally required to provide a reason, it is often helpful to explain the context. For example, if your request relates to childcare responsibilities or the need to manage a long-term health condition or disability, this may engage protections under the Equality Act 2010. Where relevant, you may wish to explain how refusal of the request would impact you and your ability to continue working. This may strengthen your position and remind your employer of their legal obligation to consider the request fairly.
Anticipate and address your employer’s concerns
While it is no longer a requirement to explain how your request may affect the business, it may still be helpful to show that you have thought about the practical implications. Consider whether there may be concerns about continuity, cover, client service, or team collaboration. If you can offer solutions or alternative arrangements, it may make your request more persuasive. The aim is not to second-guess every concern, but to demonstrate a constructive and balanced approach.
Highlight any benefits to the business
If you believe your proposed arrangement would help you to remain engaged, productive and committed to your role, it is worth stating this. Flexible working can contribute to better morale, lower absence rates, and improved retention. Employers are often more open to requests that are presented as a collaborative solution rather than a demand.
Offer alternative options if you can
You may have a preferred working pattern, but also be open to other versions of flexibility. If so, consider setting these out in order of preference, with a short explanation for each. For example, you may prefer reduced hours over four days, but would accept condensed hours or staggered start and finish times if necessary. Showing a willingness to adapt can help open up dialogue and avoid outright rejection. It often makes sense to start with your preferred approach, but be ready to present acceptable alternatives if needed.
Propose a trial period if appropriate
If your employer is unsure whether the arrangement will work in practice, you could suggest a trial period. This allows both parties to test the arrangement in a time-limited way before making any permanent changes. A trial period can also demonstrate your willingness to work in partnership with your employer and you can use the trial period to demonstrate the arrangement will not negatively impact on the business long term.
Submit your request early and clearly
Employers have up to two months to consider a statutory flexible working request, so it is important to plan ahead. If you are on maternity leave and wish to return on a different working pattern, it is sensible to submit your request well in advance. You may also ask whether your employer would consider responding sooner, particularly if there are practical factors such as nursery availability or changing childcare arrangements.
If your request engages the Equality Act, say so
Where your request is connected to a protected characteristic (such as sex or disability), or caring responsibilities for someone who is disabled, it is often advisable to say so. Employers are under a duty not to discriminate and, in some cases, to make reasonable adjustments. Reminding them of this can help ensure your request is treated with the appropriate level of care and legal understanding. How you present this effectively can be difficult, but if your employer is unaware of the full details of your situation, it may be harder to criticise their approach.
Can My Employer Refuse My Flexible Working Request?
Yes, your flexible working request can be refused, but only for certain “permitted business reasons”, which are set out in the legislation. These include:
- 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 you propose to work.
- Planned structural changes.
Your employer can also reject your flexible working request if it was not made correctly or you are not eligible, for example if you have already made two applications in the previous 12 months or are not an employee.
Your employer is not allowed to reject your request based on personal opinions or assumptions. They should provide a clear explanation based on evidence and ideally explore alternative arrangements before refusing outright. The permitted business reasons are broad, making it fairly easy for employers to reject applications and hide behind.
This is often where we may come in to help people understand their rights and how to effectively challenge a refusal.
Flexible Working After Maternity Leave
When you return from maternity leave, you do not have an automatic right to work part-time or flexibly, but you do have the right to request it. If your employer refuses your request, they must do so fairly and without discrimination.
If you are returning from:
- Ordinary maternity leave (up to 26 weeks) — you have the right to return to exactly the same job
- Additional maternity leave (more than 26 weeks) — you have the right to return to the same job, or if that is not reasonably practicable, to a suitable alternative on no less favourable terms
If your employer refuses to let you return to your role, or changes your working pattern without agreement, you may have a claim for constructive dismissal (if you have at least 2-years continuous service as an employee) or maternity discrimination.
Could a Refusal Be Discrimination?
An employer that refuses to make reasonable changes to working arrangements for a mother returning from maternity leave may be at risk of a sex discrimination claim, even if no formal flexible working request has been submitted.
Employment tribunals recognise that women are more likely than men to bear the primary responsibility for childcare. If an employer applies a working pattern that places mothers at a particular disadvantage, for example requiring full time or inflexible hours, this may amount to indirect sex discrimination, unless the employer can show that the requirement is justified by a legitimate business need and is proportionate.
A claim can be brought while the employee remains employed; there is no requirement to resign before taking action. Each case will turn on its facts, but a refusal to accommodate childcare responsibilities without a compelling reason can give rise to liability. If you are concerned about issues at work, we often say, Stay Employed, Take Advice and Act Quickly.
In addition, if an employer fails to properly consider a request for flexible working, or rejects it without fair process or reasonable justification, this may breach the implied term of mutual trust and confidence. In some cases, this could give rise to a constructive dismissal claim if the employee resigns in response to the treatment.
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Please call us on 0207 118 9218 or complete a Free Online Enquiry and we will be in touch.
My Employer Is Trying To Change My Working Pattern – Should I Make A Flexible Working Request?
An employer may try to change a working arrangement that is already in place and suggest to keep it going, you should now make a flexible working application. This may not be the best approach, as it may be seen as an acceptance that the previous arrangement was temporary and not contractual.
Certain arrangements can become contractual through custom and practice, even if they were not written down or formally recorded in a contract. In this situation, any change to your working arrangement may be a breach of contract and, depending on your length of service, another example of constructive dismissal. If you return from maternity leave and your employer seeks to unilaterally change (so without your agreement) a working pattern that was well established, then you may not want to accept this and not make a flexible working application. Again it is likely best to Stay Employed, Take Advice and Act Quickly.
What If My Request Is Refused?
If your employer refuses your request and you are not happy with their reasoning, you can:
- Submit an internal appeal.
- Raise a formal grievance.
- Seek legal advice, especially if you believe you have been treated unfairly or discriminated against.
If your employer has failed to follow the correct procedure, or if you suspect the refusal is not genuinely based on one of the legal reasons, you may have grounds for a legal claim.
How Toner Legal Can Help
At Toner Legal, we help employees who are returning from maternity leave and facing unfair treatment or difficulties negotiating flexible working.
We can advise you on:
- Making or appealing a flexible working request.
- Raising a grievance or negotiating terms.
- Assessing whether a refusal amounts to discrimination.
- Bringing a claim for indirect sex discrimination or unfair dismissal.
- Negotiating a settlement agreement if your position becomes untenable.
If your request for flexible working has been refused, or if you are struggling to return to work after maternity leave, contact us today. We will help you understand your rights and protect your position.
Get In Touch
Please call us on 0207 118 9218 or complete a Free Online Enquiry and we will be in touch.
Frequently Asked Questions
Can I request flexible working as soon as I return from maternity leave?
Yes. Since 6 April 2024, all employees in the UK can request flexible working from day one of employment. You do not need to complete a set amount of service before applying.
Do I have to explain why I want to work flexibly?
No, it is not a legal requirement. However, if your request relates to caring responsibilities or a health condition, it may help to explain this. In some cases, it may strengthen your position and engage legal protections under the Equality Act 2010.
How many flexible working requests can I make in a year?
You can make two statutory flexible working requests in any 12-month period. Only one request can be “live” at a time.
Can my employer refuse my request?
Yes, but only for one or more of the permitted business reasons set out in the legislation. These include cost, impact on performance or quality, inability to reorganise work, and similar operational reasons.
What happens if my employer refuses my request unfairly?
You can appeal the decision or raise a formal grievance. If the refusal was unreasonable or discriminatory, you may have a claim for indirect sex discrimination, particularly if the refusal places mothers at a disadvantage. If you think this has happened, we suggest you Stay Employed, Take Advice and Act Quickly.
Do I have to resign to bring a claim for discrimination?
No. You can bring a claim while still employed. There is no requirement to resign in order to bring a discrimination claim in the employment tribunal.
What if I already had an agreed working pattern and my employer tries to change it?
If you have a well-established working pattern, it may have become contractual through custom and practice. Your employer may need your agreement to change it. If they try to change it without your consent, it may amount to a breach of contract or even constructive dismissal if you are forced to resign.
How long does my employer have to respond to my request?
Your employer must provide a decision within two months of receiving your statutory flexible working request, unless you both agree to a longer timeframe.
Can I include alternatives in my flexible working request?
Yes, and it is often sensible to do so. You may wish to include several options in order of preference to show you are willing to be flexible, while still making clear what arrangement would work best for you.