An employer who refused an employee’s request to return to work four days a week and to leave an hour earlier each day to enable her to collect her child from nursery was found to have indirectly discriminated against her. Whilst the employer undertook a flexible working process and refused her request on several grounds which were permitted by flexible working legislation, they nevertheless fell foul of the law.
As some employers may be experiencing an upturn in the number of flexible working requests being made, the case of Thompson v Scancrown Ltd (trading as Manors) is important, as it highlights the need to be alert to issues such as indirect discrimination when considering flexible working requests.
The Facts of the Case
The employee worked as a Sales Manager at a small independent estate agent. She was contracted to work five days a week, finishing at 6.00pm. Towards the end of her maternity leave she met with the business’ owner and raised that she wished to reduce her working hours to four days per week, leaving at 5.00pm each day to collect her child from nursery. The nursery closed at 6pm and was about an hour away. The owner told her that if this was the case, she would need to make a formal flexible working request which she later did.
Following a flexible working meeting, the employer wrote to the employee to advise her that they were unable to accommodate her request. They set out the statutory grounds on which the request had been refused. The employee appealed and the appeal was heard by someone external who investigated the position, speaking with the owner, before the employee was advised in writing that her appeal had not been successful.
The employee complained to an employment tribunal about a number of matters, including that the refusal of her flexible working request was indirect sex discrimination. In brief, indirect sex discrimination takes place where an employer applies an apparently neutral provision, criterion or practice (PCP) which puts a group of a particular sex at a disadvantage, including the employee in question, and the employer is unable to objectively justify their actions.
The judge held that the employee in this case had been indirectly discriminated against. He found amongst other things that:
- The ‘provision of neutral effect’ was the requirement that the employee work full-time, 9am – 6pm, Monday to Friday. The employee argued that such a requirement places more women with children at a substantial disadvantage than men with children. The tribunal accepted that “notwithstanding an encouraging shift in societal attitudes, it is still the case that mothers are more likely to carry primary [childcare] responsibility than fathers”. In particular, the nursery closing at 6pm aligned with standard office hours, and a requirement to work until 6pm each day did place the employee at a disadvantage, as she would not be able to get there in time.
- Whilst the employer’s ‘legitimate aim’ had not been put forward in so many words, it was understood to be “the success of the business”, having regard to the reference in the flexible working refusal letter to the importance of consistency and continuity in client relationships for successful sales.
- The employer was unable to show that refusal of the proposed reduction in hours was a proportionate means of achieving the legitimate aim. When reaching this conclusion, the judge considered the factors relied on by the employer, which included the costs of the proposal, the inability to reorganise work among existing staff, and the inability to recruit additional staff. The judge found that:
- Accommodating the flexible working request would not result in the increase in wage cost that the employer had assessed. Furthermore, whilst allocating commission on sales between staff in the event of any part-time working might have been difficult, it was not insurmountable as the employer had believed.
- It was hard to see that a colleague who had covered the employee’s role during her maternity leave would turn down an option to remain sales manager on a one day a week basis and continue as negotiator for the other four days if she was remunerated appropriately. The two employees had worked co-operatively in the past.
- Evidence of past working showed that the team worked as a whole and was small enough to know and keep abreast of all potential customers and sales. In the judge’s experience, if other staff are well informed and helpful, most customers accept that a named individual may not be immediately available.
- Whilst there may have been a ‘vanishingly small’ chance of recruiting a sales manager for one day a week, this was not necessary as a sales negotiator could step up to cover the employee’s duties, or if there was a need to increase the sales team’s resources there were other options available such as recruiting additional administration support, where there are more likely to be suitably experienced people looking for part-time work.
Whilst the judge did give some weight to the employer’s reasons for not making any changes, it was found that the employer had not shown that the refusal of the proposed reduction in hours of work was proportionate to the real need of the business to maintain successful relations with customers. As such, the employee had been subject to indirect sex discrimination. She was awarded almost £185,000.
Managing flexible working requests can be a tricky area for employers. There can be a lot to think about in general, such as ensuring a request is dealt with promptly, dealt with in a ‘reasonable manner’ and making sure any correspondence and documentation such as contract variations are handled correctly.
It is important to be aware that some employees may make a request for flexible working for reasons which, if their request is refused, may give them a claim under the statutory flexible working provisions only. But as highlighted by the case in this Legal Update, other employees may have further statutory protection which you may need to bear in mind when considering their request. Often (but not exclusively) these requests will be made by employees seeking to vary their working hours in accordance with childcare commitments, religious requirements or as a reasonable adjustment because they are disabled.
It should be borne in mind that in such situations, if the request is refused, the reasons for this can be subject to much greater scrutiny in the event of an employment tribunal claim than may otherwise be the case.
If you receive a flexible working request in your organisation, please contact Kingfisher Professional Services Ltd for advice on your situation and the steps to follow.
If you have any employment law matter you would like assistance with, please do not hesitate to contact us as we are happy to help.