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Want to stay on the right side of the law? We support businesses and public authorities and help them to promote good practice.
 
 

Flexible working

pregnancy and maternity

What you need to know

 

Flexible Working - pregnancy/maternity


A pregnant employee has said she might want to return to her job part-time. What must I do?

If she has been employed for 26 weeks she has a statutory right to request flexible working. The procedure you must follow when handling these requests is explained in the following publications:
   

What type of changes to her working patterns or location can an employee request?

She can ask to change:
 
  • The hours she works.
  • The time she works, for example a later start or earlier finish.
  • Location of work, for example to working at home.

If I agree to the flexible working request will the change be permanent?

Yes, it will usually be a permanent change to her contract but you can agree with your employee that it is a temporary change with an agreed review date. This will allow you and the employee to trial the arrangement to determine its suitability for both parties. The arrangement might then be retained or an alternative arrangement agreed.
 

Can men ask for flexible working and should I treat the request differently?

Male employees who have worked for you for more that 26 weeks have a statutory right to ask for flexible working. You must treat the request in the same way as you would treat a request from a woman in similar circumstances. Failure to do so may be sex discrimination.
 

What is the procedure for an employee using their statutory right to make a request for flexible working?

An employee must make a written, dated application setting out:
 

  • Proposed change to working conditions and date of change.
  • Effect of change on the employer and how to address perceived negative impacts and;
  • A statement that this is a statutory request and setting out any previous applications, with dates.


If the change is because of a disability, to care for a child or dependant or race, it is good practice to encourage the employee to say this, so it can be taken into account. This will help protect you against claims of indirect discrimination or failure to make a reasonable adjustment in particular.

 

How should I respond to a statutory request for flexible working?

You must:

  • Consider the benefits of the requested changes for the employee and the business, weighing the benefits against any adverse business impact.
  • Avoid both direct and indirect discrimination.
  • Discuss the request with the employee within the statutory timeframe, allowing them to be accompanied to a meeting by a work colleague or trade union official recognised by you as the employer, unless you have already agreed the request in which case a meeting may not be necessary.
  • Give a decision within the statutory timeframe and the decision should be in writing.
  • You must consider each request individually and with an open mind, following the requirements of the existing legislation.

It is good practice to make a decision as quickly as possible so that you and the employee can plan her return to work and the employee can find the right childcare for the days she will be working.
 

I do not feel I can agree the statutory request to work flexibly. Can I refuse the request and for what reasons?

You can refuse a statutory flexible working request for one of the eight reasons set out in Article 112G Employment Rights (NI) Order 1996. The grounds for refusal under the flexible working procedure are:

  • The burden of additional costs.
  • An inability to reorganise work amongst existing staff.
  • An inability to recruit additional staff.
  • A detrimental impact on quality.
  • A detrimental impact on performance.
  • A detrimental effect on ability to meet customer demand.
  • Insufficient work for the periods the employee proposes to work.
  • A planned structural change to the business.
 

Can an employee take any legal action if I refuse a statutory request for flexible working?

If you refuse the request for flexible working without a good business reason this might be indirect sex discrimination. To reduce the risk of complaints arising and increase your chances of successfully defending those that do arise, see the Equality Commission's flexible working guide for employers (pdf)
 

What happens if I do not follow the statutory procedure for handling requests for flexible working?

Your employee may make a claim against you for:
 

  • Failure to consider the flexible working application in a reasonable manner.
  • Failure to notify the employee of a decision within three months.
  • Refusing the application without a specified business reason.


An industrial tribunal may order you to reconsider the employee’s application or make an award of compensation up to a maximum of eight weeks’ pay.

 
 

 
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< Pregnancy & Maternity (main page)
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