Thorny issues Q&A

One of our account manager's secretaries has been on maternity leave. Before she went, there were a number of performance problems but she had only received one informal warning. The problem has been on going for a number of years. We hired a temporary replacement who has been excellent. She has easily exceeded the standards of the original secretary and has demonstrated that the standards we have accepted were really below par.

We wish to retain the temporary secretary (and she is agreeable) and to let the original secretary go (we will obviously pay her notice). What is our exposure?

You would be exposed to claims of unfair dismissal and sex discrimination. Dismissals in connection with pregnancy are automatically unfair. Pregnant women and those on maternity leave also have special protection under the sex discrimination legislation. In this case it would be very difficult for you to separate the dismissal from the fact that the employee had been absent from work for a pregnancy related reason (the problem only came to light when she was on maternity leave). Since there is no maximum limit on sex discrimination awards, your potential liability is high. If the original secretary has difficulty on securing equally well paid employment quite quickly, you could be liable for future losses of earnings as well as having to pay compensation for injury to feelings. The safest course is for you to take the original employee back into service and to address the performance issue through a formal performance procedure involving consultation, warnings and training where appropriate. This could take you several months.

It would also be possible for you to make a "without prejudice" offer of settlement to the employee. In these circumstances, the agency pays the employee a sum of money in exchange for her agreeing to waive her right to sue the agency. This should be done through a compromise agreement.

We have an administrative assistant who is due to come back from maternity leave and has made a request to work part time. She used to work full time and we want her to return to work full time or not at all. Can we just refuse this request?

If the employee has only taken off maternity leave, she has the right to return to the same job that she left and treated as if she had never been absent. If she previously worked full time, therefore, she is not automatically entitled to return on a part time basis.

This is regardless of what the employee may have read, or think they have read, in the press.

You have a positive duty to consider properly any request from employees who do not want to return to the same job or on the same terms. Requests might be to come back part time, to work "fixed hours" (for example, never staying later than 5.00pm), to work different hours (for example, to work 10.00am – 4.00pm), to work fewer days per week (for example, Monday to Thursday) or to work from home. The points below apply to all these types of request. The fact that an employee may have returned to work full time following the birth of her first child does not excuse you from properly considering a flexible hours working request on an intended return to work following the birth of a second child.

The duty arises because of sex discrimination law. You may be indirectly discriminating against mothers who wish to return to work on a part-time basis, if the requirement to work full-time cannot be objectively justified.

What does this mean?

– the request should be looked at with an open mind;

– you should weigh up the reasonable needs of the business against the effect on the mother of requiring her to work the same (full-time) hours;

– the question should be approached from the standpoint of "is there any way in which the business can accommodate some form of flexible working" and not "does the business want to allow this form of working?".

How is the balancing act carried out?

First, ask the mother what she is asking for and why, preferably in writing.

Your policy on flexible forms of working is that it will (as it legally must) consider individual requests in the light of the needs of the business.

It is therefore up to the employee to come up with a proposal. How many days does she want to work? Has she thought of any problems (or advantages) for the business? Who will do the work when she is not there? Why does she not want to work as before? What are the advantages for her?

When her manager has asked for, and received, a concrete proposal he/she should go to the next stage.
Secondly, work out the needs of the business.

These must be objective. Her manager must be able to justify his/her opinion with facts. Specific practical reasons for insisting on full-time work, for example, are likely to carry more weight than generalised objections based on policy and principle.

Is the request capable of being agreed without adversely affecting the business?

Can minor changes be made either to the job or to other employees' roles which would make the proposal work without significant disruption or cost?

Can other employees cover part of the job without affecting overall performance?

Is any adverse business consequence material or is it merely theoretical or insignificant?

Remember that mere convenience or "this is the way that the industry is organised" will not wash.

Thirdly, balance the reasonable needs of the business against the effect on her of refusing her proposal.

Will a refusal mean she has to give up the job, will it inconvenience her or will it cost her more (for example, in terms of child-care)?

Fourthly, consider whether there is any compromise the business can suggest?

Consider the reasons why she wants to make the change.

Can the manager / business make some suggestions which will meet or partially meet the advantages she sees but with less or no disadvantage to the business. If so, could this proposal be put forward?

Fifthly, consult further with the employee about the position and, eventually, inform her of the business decision.

Consult with the employee concerning any necessary changes to her proposal, etc. This should be done at a meeting and confirmed in writing. The employee should be given time to consider any counter-proposals and to comment on them.

If the request cannot be agreed in any form and is eventually refused, then a meeting should be held with the employee to explain why. This should be followed up in writing. If it means that the employee is unable to continue working, the business should actively consult and make enquiries concerning alternative employment for her within the organisation.

You must point out that if the manager does not carry out this balancing act and refuses to allow the mother to change her hours, an Employment Tribunal is likely to find that the business has discriminated against the mother on grounds of her sex. Remind him/her there is no limit on the potential compensation for this.