Currently, the law gives women the right to return to their jobs after maternity leave, but not the absolute right to work part-time. But the Sex Discrimination Act of 1975 states there is indirect discrimination if an employer requires a woman to work particular hours (full time, for example). But far fewer women than men are able to work this way, and the employer cannot show this require-ment to be justifiable, and this requirement puts the woman at a disadvantage because she cannot comply with the hours required.
"It is an area of the law that is very little known," says Joanna Wade, the Maternity Alliance's specialist lawyer. "A lay person or even a lawyer might find it very difficult to make the connection between this particular section of the Sex Discrimination Act and the right to work child-friendly hours, but that connection is solid."
What this means in practice, she explains, is that employers must have a very definite reason for refusing mothers the right to work part-time. "It has to be a proper business reason, not just the employer saying, 'I don't fancy that'. Under the law, women have the right to have their request to work child-friendly hours seriously considered."
Arguments against flexible working that would not count as justification, should they be raised in an Employment Tribunal, include stating there are no part-time vacancies, that the job is too senior to be effectively carried out part-time or as a job-share, or that continuity is needed in the job. (See box, right.)
Earlier this year, in a landmark ruling, London Underground driver Susan Edwards won her case against London Transport using the Sex Discrimination Act. A new rostering system introduced in 1992 that meant all staff ended up working early or late shifts forced her to choose between her job and looking after her child. Ms Edwards, a single mother, said managers told her she could "be a train driver or a mum". The Court of Appeal ruled that imposition of the new shift system amounted to indirect discrimination because it had a far greater impact on women drivers than on men, and unanimously dismissed a London Underground appeal against rulings in Ms Edwards' favour by an industrial tribunal in 1995 and Employment Appeals Tribunal in 1997.
There are grounds, says Joanna Wade, for returning mothers to be optimistic about this underused slant on their rights. Many women, she says, find that "getting off the starting block in negotiating part-time work is very difficult because the employee doesn't know their rights and the employers don't know the legal situation either". However, she points out that every case is judged on its merits. Recently, a receptionist in a specialist diagnostic company, for example, lost her case to work part-time because the court ruled that, as her employers claimed, her tasks were particularly specialised and continuity was essential.
However, turning to the law is a last resort, as Maternity Alliance spokeswoman Jan Fry points out. "We are hoping to give women tools for negotiation, so they can approach their employer early on in their pregnancy and sort the situation out. We have a database of specialists who, if women get into deep water with their employers, can advise on who can represent them. But we are hoping this information will help women never to have to reach that stage."
And Joanna Wade adds, "What it does give to negotiation is the iron fist in the velvet glove. Of course, negotiation is preferable, but the tone and substance of that negotiation will be very different if the employee knows what is available legally."
Camilla Palmer, a solicitor with London firm Bindman and Partners, specialises in discrimination. Her book, Legal Rights to Child-Friendly Hours: A Practical Guide to Using Sex Discrimination Law, will be published by the Maternity Alliance in December. She recently acted in a case of this kind backed by the Equal Opportunities Commission where there was a settlement of pounds 45,000.
"In my experience of dealing with a lot of cases for women who want to change their working hours, employers often don't know about the legal position, nor do women themselves, and there is also a lot of ignorance among solicitors," she says. "It's not the easiest area of law. The aim of the book is to simplify it and raise awareness." Like Joanna Wade, she believes the outlook for many cases is optimistic. The director general of the Confederation of British Industry, she points out, has said that many management jobs are splittable: he came up with one example that isn't, that of Prime Minister.
Olwyn Burgess, director of career management at Cepec Consulting, says women who insist they want to work child-friendly hours aren't necessarily shooting themselves in the foot. "The public sector is more open to child- friendly working," she says. "There is still a notion among employers that part-time means not committed. But I'd say to who- ever I was advising: don't be put off."
Vicky Wright, president of the Association of Management Consultancies and group MD of Hay Management Consultants, believes that child-friendly hours need not be a problem in many businesses. Some jobs, she says, are less appropriate than others, particularly in very senior positions, and some small firms can find it difficult to adapt. "The challenge for companies is that a lot of people haven't even thought about it," she says. "Some companies just have not got the creative mindset to make it work."
'Going Back: A Woman's Guide to Returning to Work After Maternity Leave' is available from the Maternity Alliance, 45 Beech Street, London EC2P 2LX, for pounds 2.50. The Maternity Alliance Advice Line (0171-588 8582) provides information about lawyers and advisers who specialise in sex discrimination cases in the UK.
KNOW YOUR RIGHTS
According to the Maternity Alliance's research, the following arguments against child-friendly working hours wouldn't count as justification if raised in an Employment Tribunal:
"There are no part-time vacancies." To avoid discrimination, an employer must consider every request from women wanting to work flexibly. Reasons for not offering part-time work must be carefully looked at. If there is just too much work for a part-timer, your employer should consider a job-share.
"The job is too senior." An employer must consider any woman's request to work flexibly, no matter how senior.
"It is too expensive." An employer's sums must add up. This may not be possible. National Insurance costs are less for part-timers. And extra equipment may need not be needed if part-timers and job-sharers share desks.
"Continuity is crucial." One chairman of an Employment Tribunal was not impressed by this; he said the problem could be overcome "by the simple means of a notepad".
"Last-minute overtime is essential to the job." You and your employer may find your overtime is quite regular so your employer could consider setting up a job-share or arranging an "on-call" rota to cover times you can't do.