Posted on 6th July 2020

“I’m juggling work and childcare and now my boss wants me back at work”

As workplaces gradually re-open for business, many employees will be returning from a period of furlough or home-working. Some of us will be happy to see familiar faces and reunite with our colleagues. For others, however, this may prove tricky – especially if we have work and childcare responsibilities. It may be a huge relief that we no longer have to home-school. But what if you are being told to return to work at a time when your child’s school remains closed? What if your local holiday clubs are not running this summer? What if you cannot find replacement childcare?

Can your employer force you to choose between your work and childcare commitments?

If you find yourself in this position, here are some options below.

Make a request for flexible working

First, you could (and probably should) make a formal request for flexible working. Provided you have been employed for at least 26 weeks, you have a legal right to request your employer to vary your terms of employment. You can ask it to vary your normal hours, your start/ finish times or your usual place of work.

If you want to make a formal request, then it is best to put this in a formal letter or e-mail.

What to include in a formal request for flexible working

(1) Explain that you are making a request under section 80F of the Employment Rights Act 1996.

(2) Spell out what change(s) you are applying for and from when.

(3) Anticipate what impact this will have on your employer’s business and then propose how the employer could deal with that.

For example, you could ask to: reduce your hours to part-time; change your start/ finish time on certain days; do compressed hours (i.e. the same number of weekly hours but over longer days); work from home; job-share.

The good news is that your employer must consider your request seriously and give you a response. The bad news is that the employer is entitled to refuse your request. However, they can refuse only for certain limited reasons, for example, if your request would be too costly or impractical to implement or if it would affect the quality of your work.

All this means it is important to think through your request properly in advance and pre-empt any objections from your employer. Try to be as helpful and constructive as possible. Where possible, try to rely on your employer’s parental leave policy or its equal opportunities policy. These may claim that the employer is committed to having an inclusive and diverse workforce and that it prides itself on being a family-friendly business. If so, then hold the employer to its own policies and values. Finally, you cannot make more than one request in a 12-month period. So make sure your request is good as possible: in practice, you will only get one shot.

Make a legal claim in the Employment Tribunal

The Employment Tribunal is responsible for hearing claims from people who think someone such as an employer or potential employer has treated them unlawfully.

If your employer does not deal with your flexible working request reasonably, then you can complain to the Employment Tribunal. It has the power to force your employer to reconsider and to order it to pay you compensation.

You may also have a claim for indirect sex discrimination. Any work policy which requires staff to return to the workplace is likely to affect working mothers more than working fathers. That is because (on the whole) mothers tend to take on greater responsibility for childcare than fathers. They are more likely to be disadvantaged by the policy. That could potentially give rise to a complaint for “indirect discrimination”. An employer could try to defend its policy, by arguing it is justified. However, the Tribunal would test that carefully. For example, a blanket instruction to return to work, which makes no exceptions, may be held to be disproportionate and an inadequate defence. If a Tribunal finds the employer guilty of indirect discrimination, it may order it to pay compensation.

Conclusion

Balancing work and childcare commitments can be tricky at the best of times, but never more so than now. If you are being told by your employer to return to work, then you should make a request for flexible working. If that leads nowhere, then consider carefully making a legal complaint to the Employment Tribunal. In either case, you may benefit from some early advice from a specialist employment lawyer.  Contact us today and we can refer your case onto either a solicitor or barrister for free.