A recent Tribunal case has once again highlighted the importance of ensuring that flexible working requests, in particular those from women who have childcare responsibilities, are handled correctly and given proper and due consideration before they are rejected.

In Thompson v Scancrown Ltd t/a Manors, the London Central Employment Tribunal upheld a claim for indirect sex discrimination against Scancrown when they refused Mrs Thompson’s request following her return from maternity leave to work 4 days a week and to leave at 5pm, as opposed to 6pm, to enable her to collect her daughter from nursery.

The Law

When an employee makes a flexible working request, there are two aspects to such a request which will need to be given appropriate consideration.

Firstly, where the request is made through a formal statutory request, an employer must:

• Deal with it in a reasonable manner.
• Notify the employee of its decision within the decision period (three months beginning with the date on which the employee’s request is made or a longer period if agreed).
• Only refuse a request on one or more of the following grounds:
• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; or
• planned structural changes.

If an employer does not, then an employee can potentially bring the following claims:

• The employer failed to deal with their application in a reasonable manner.
• The employer failed to notify them of the decision on their application within the decision period.
• The employer rejected the application for a reason other than one of the statutory grounds.
• The employer’s decision to reject the application was based on incorrect facts.
• The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.

Few cases are brought in which a claim for breach of the statutory right to request flexible working has not been accompanied by a claim for sex discrimination. For women, this has proved an effective remedy. It is quite possible for claims to fail under the flexible working provisions but to succeed as a sex discrimination claim.

Indirect sex discrimination occurs where:

• A applies to B a provision, criterion or practice (PCP).
• A applies (or would apply) that PCP to persons not of the same sex as B.
• The PCP puts or would put persons of B’s sex at a particular disadvantage.
• The PCP puts or would put B at that disadvantage.
• A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

Fundamentally the difference is that the legislation governing the statutory right to request flexible working offers little scope to examine the commercial rationale, whereas in a claim of indirect sex discrimination, the reason why the decision has been reached is fundamental to establishing whether the decision can be justified.

Facts

Mrs Thompson was employed by Scancrown as a Sales Manager. Following a period of maternity leave, Mrs Thompson made a flexible working request. She initially asked to reduce her hours from full time down to 4 days per week and to leave at 5pm to enable her to collect her daughter from nursery by 6pm on her working days. Ultimately, her request was rejected with no alternative proposal being put forward, and after a series of grievances and appeals, Mrs Thompson resigned.

Mrs Thompson brought a variety of claims against the Respondent, however the only claim to succeed was her claim for indirect sex discrimination.

The Tribunal identified that in this case, the provision of neutral effect was the requirement that the Sales Manager worked full-time, 9-6, Monday to Friday.

The Tribunal accepted the evidence presented by Mrs Thompson that despite a push to change societal attitudes, it is still the case that mothers are more likely to carry primary responsibility than fathers and as a group would therefore be disadvantaged by this requirement.

Next, the Tribunal considered whether Mrs Thompson was at this disadvantage. The Tribunal accepted that the nursery closing at 6pm aligns with standard office hours, and a requirement to work until 6pm each day did place the Claimant at a disadvantage, as she would not be able to get there in time. With regards to the four day working, the Tribunal was not clear why this was wanted, for example due to the Claimant’s long commute (up to 2 hours per day) or the cost of nursery care, but the Tribunal accepted that the requirement did put her at a disadvantage.

Finally, the Tribunal considered objective justification. While it accepted Scancrown’s concerns about changing the make-up of a team that worked, in a time of commercial uncertainty, they did not follow the reasoning for holding that the difficulty of making adjustments to who did what in Mrs Thompson’s proposed solution was such that it convincingly outweighed the discriminatory impact on her. They therefore concluded that Scancrown 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 indirect discrimination claim succeeded.

Summary

In order to successfully defend an indirect sex discrimination claim following a flexible working request, employers need to give careful consideration to the request, which may involve a trial period or might allow the employee’s request to be accommodated in a modified form.

When an employer dismisses an application without giving it due consideration or suggesting alternatives then they risk facing a claim for discrimination, which can be a costly mistake, as in this case where the award was £185,000.

Herrington Carmichael are running a free management training session on how to handle flexible working requests on 24 November 2021.

If you or someone within your organisation would benefit from attending this training please sign up here.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.