Why it's important to get the flexible working process right

Our team looks into a case that highlights the importance of getting the flexible working process right.

In Slyk v Nursery @ Aspire, the Employment Tribunal (ET) considered two issues: the wording of the employer’s occupational maternity pay (OMP) policy and a flexible working request submitted after maternity leave.

Ms Slyk, employed as a room leader, went on maternity leave under a policy that provided OMP – an additional payment on top of statutory maternity pay (SMP). The policy wording was misleading, stating that “OMP is paid for 12 weeks on top of SMP equating to 90% of pay.”

Following an internal payroll error, the employer sought repayment of an alleged overpayment, while Ms Slyk claimed she had been underpaid, arguing she was entitled to 90% of her salary in addition to SMP for the first 12 weeks.

The ET found the policy wording ambiguous but, applying contract law principles, concluded that the employer’s consistent practice showed Ms Slyk was entitled to 90% pay in total, rather than on top of SMP. As she had received this amount, there was no breach of contract or evidence of discrimination.

The tribunal also considered Ms Slyk’s flexible working request submitted after maternity leave. She sought to reduce her hours, which was initially allowed on a temporary basis, but her formal request to make the arrangement permanent was ultimately refused.

At the time of her request, the law did not require consultation before refusal. However, this changed in April 2024, with new legislation in force before the decision was made.

The tribunal found that the nursery manager should have met with Ms Slyk to explore options. Failing to do so was a procedural shortcoming and a breach of the flexible working provisions. Ms Slyk was awarded compensation, despite the tribunal agreeing with the substantive grounds for refusal of her request.

What should your business do?

This case highlights the importance of having clearly drafted policies in place. A well-worded occupational maternity pay policy could have prevented the dispute and saved significant resources.

It also serves as a timely reminder to follow statutory procedures when handling flexible working requests, as even minor procedural errors can undermine an otherwise lawful decision and lead to a finding based on technicality.

Our legal experts can assist with drafting clear policies, and you may also benefit from flexible working training via Willans eLearn.

Our Legal 500-rated employment law & business immigration team are experts in guiding businesses of all sizes and backgrounds through a range of issues that may arise.