Failure to consider impact of menopause in flexible working request

The Employment Relations (Flexible Working) Act 2023 introduced a number of changes in April regarding flexible working requests (see our previous article on the topic).

While employees can only be awarded a maximum of eight week’s capped pay in respect of an employer’s breach of the statutory “right to request” flexible working, compensation for successful discrimination claims is uncapped, which opens employers up to much greater risk.

Employers have a duty to make reasonable adjustments for employees who are classed as disabled under the Equality Act 2010. A commonly requested adjustment is to vary an employee’s working pattern, which an employee may also seek via a flexible working request.

In the recent case of Johnson v Bronzeshield Lifting Ltd, Ms Johnson brought claims in the employment tribunal alleging that she had been discriminated against because of her menopause (which she argued was a disability) when making a flexible working request.

Facts of the case

Ms Johnson worked as an administrator for a small crane hire company. She asked to reduce her working days, which included taking Fridays off. She explained she needed these changes to care for her elderly parents and cope with “menopause issues”. The request was refused on the basis that Friday was the busiest day of the week for the business. Ms Johnson resigned on notice.

Tribunal decision

Ms Johnson’s employer accepted that her menopause amounted to a disability under the Equality Act 2010. That being said, the Tribunal found that her employer did not give any thought to her menopause when considering her flexible working request. In evidence, the Finance Director said this was because he did not understand it. However, he admitted that if Ms Johnson had a different disability (such as cancer) he would have asked her what support she needed. This failure amounted to direct disability discrimination on the basis that she was treated less favourably because of her disability.

However, the Tribunal found that the refusal of the request was not disability discrimination because there was reasonable and proper cause to decline her request. The business needed an administrator to work on Fridays and would have refused a request from someone asking for the same arrangement who didn’t have Ms Johnson’s disability.

Ms Johnson was successful in her constructive unfair dismissal claim because the business had failed to consider the impact of her menopause when determining her flexible working request. In evidence, Ms Johnson explained that the reason she wanted Fridays off was because she found the traffic harder to cope with as a result of her menopause and the traffic was particularly bad on Fridays.

What does this mean for employers?

The changes brought in by the new legislation will no doubt lead to an increase in flexible working requests. While there is no legal duty on employees to tell their employers why they want to change their working pattern under the statutory “right to request”, employers should make an effort to find out what the link is between an employee’s condition (if any) and the requested pattern.

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