Isabelle, AOP member
“I'm an optometrist due to return to work after maternity leave with my second child. Due to my change of circumstances, it is my preference not to return to work full-time. How should I raise this with my employer and do they have to say yes? I’m also concerned about my rights if my child is unexpectedly ill at nursery and what to do if I run out of annual leave over school holidays?”
Heidi Blakey, AOP employment counsel
Whilst you can informally ask to adjust your hours at any point, after 26 weeks’ service you have the legal right to make a flexible working application to change your working pattern. You can make one request in any 12-month period. Your request should be in writing and it should set out the proposed changes, what effect this will have on the business and how that may be dealt with.
Your employer doesn’t have to say yes to your flexible working application as there is no absolute right to work flexibly, but your employer has to consider your application, deal with it reasonably and has a three-month decision period. If they say no, this should be for one or more of eight statutory reasons, including the burden of additional costs and inability to recruit extra staff or reorganise work amongst existing staff.
If your application is not dealt with in a reasonable manner or if there is a breach of any statutory requirements, you may be able to bring an employment tribunal claim.
If your application is not granted, it is possible that you may have a claim of indirect sex discrimination on the basis that the requirement for the job to be worked on a full time basis impacts disproportionately on women as more women have childcare responsibilities.
"Your employer doesn’t have to say yes to your flexible working application as there is no absolute right to work flexibly, but your employer has to consider your application"
Unexpected time off
You have the right to take unpaid time off for dependants. This means you can take reasonable time off from work to take urgent action which is necessary in relation to your dependents. This includes providing assistance when a dependant is ill, making arrangements for care or due to unexpected disruption of care arrangements. The amount of time will depend on the incident and what is needed to help. This is likely to cover a situation where a child is taken ill at nursery or school. However, the right only gives time off to deal with an immediate problem, so for a child’s sickness, this would generally be the time taken to give immediate care, and then time to arrange alternative longer-term care arrangements.
When it comes to taking school holidays off to coincide with a child being out of school, you may be able to take a period of parental leave, which will not come out of your normal holiday entitlement.
After one year’s continuous service, eligible employees can take off up to 18 weeks unpaid parental leave for each child for the purposes of caring for that child up to their 18th birthday.
Under the default statutory scheme, you can take a maximum of four weeks off per year per child, and this must be in blocks of at least a week (unless the child is disabled) and advance notice must be given but sometimes employers may implement a more favourable scheme. Alternatively, it may be possible to reach agreement with your employer to grant you unpaid leave on an ad hoc discretionary basis.
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