Hi Tina, you need to choose one of the eight valid business reasons for deciding a flexible working request. You can find these the ACAS website. The CIPD also has great resources on flexible working.

Hi Tina,

Your director is incorrect, there has to be one of the 8 reasons to reject it (as Nick rightly said) the are.

• It will cost your business too much
• You cannot reorganise the work among other staff
• You cannot recruit more staff
• There will be a negative effect on quality
• There will be a negative effect on the business' ability to meet customer demand
• There will be a negative effect on performance
• There's not enough work for your employee to do when they've requested to work
• There are planned changes to the business, for example, you intend to reorganise or change the business and think the request will not fit with these plans

To say the company cannot support it would need further clarification for your response.

How did the business manage whilst the employee was off on maternity?

Yes, the director is wrong.

Strictly speaking, the financial risk of failing to follow the Flexible Working regulations is only a fine of up to eight weeks' pay, though, so its possible that the directors have taken a position that they simply reject all flexible working requests and swallow the potential costs when they come.

But in this case, of course, there is the additional risk of maternity discrimination, which could be rather more expensive. Now, the director might ask "how can it be discrimination when we treat everyone the same? I didn't reject it because she's had a baby. I rejected it because I reject all flexible working requests."

Well, that's when we get into the area of indirect discrimination, where a policy (even unintentionally) affects one group more harshly than others. A returning mother can reasonably be anticipated to be more severely affected by a rejection of a flexible working request (because they are more likely to be forced to resign as a result of the rejection that others) and the company should therefore have anticipated this possibility when formulating the policy. That they failed to do so is indirect discrimination and an Employment Tribunal is likely to find against them. The phrase I like to emphasise in these cases is "unlimited damages".

Courts will often award settlements calculated in terms of years of salary, plus lost bonuses/overtime/enhancements, plus pension contributions, plus NI contributions, plus costs, and sometimes throw in a punitive element for hurt to feelings if the employer was especially malicious in the way it went about things.

In short, your employer needs to either re-think their approach to flexible working or start making financial provisions for large settlements.

A really unfortunate situation and one that reminds me of my wife when she tried returning post maternity leave.

When my wife and I (though not married at the time) first got together she lived and worked 100 miles away from me. She became pregnant, and at the start of her maternity leave she moved in with me. She remained on maternity leave for 10 months and then wanted to resume her role 100 miles away whilst living with me.

She submitted a flexible working application and wanted to reduce from 5 days to 4 - they said no. She then asked for the ability to work from home on 2 of her days - they said no. Bear in mind she was an accountant and 100% of her tasks COULD be done remotely. She then asked to relocate to a different office (and there was one just 15 miles away) - they said no.

She then resigned and there were discussions similar to other replies about maternity discrimination and constructive dismissal.

I believe the company's stance was similar to what other replies have said - they simply "didn't do" flexible working - but the danger was, as other replies have also said, this disadvantages some groups more than it does others. Could that stance be seen as a proportionate response to a legitimate business aim? We never got far enough to test that as she simply got a new job closer to home - with flexible working - but it would have made for an interesting case.

Tread carefully.

Hi Tina, you have some great points below. I feel for you as it seems like the Director is looking for you to reply on their behalf. Of course you could but I'd push back. You can share the reasons they need to give and, as Gary says, tread carefully.

In a world where talent is scarce and the costs of refusing - on a number of levels- unless there is a very good business reason not to are high, it seems a little silly to not give this serious consideration.

I left permanent work because of a lack of flexibility at work and that was 17 years ago. It seems legal rights have got a lot better but old attitudes remain, that's a sad state of affairs on the 'war for talent' front.