Rejection of Flexible Working Request Considered Indirect Sex Discrimination

In Thompson v Scancrown Ltd (trading as Manors), the Employment Tribunal held that a refusal of a female employee’s request for flexible working, which would have enabled her to collect her daughter from nursery, was an act of indirect sex discrimination.

Background

The Claimant was a Sales Manager for an estate agent in Central London who began maternity leave in October 2018 and returned to work in October 2019.

Both in anticipation of the Claimant’s return to work, and once she had actually returned to work, the Claimant made an application to adopt a flexible working pattern to be able to pick her daughter up from nursery. The Claimant had originally asked to work four days a week instead of five and had also requested to finish at 5pm instead of 6pm, as her daughter’s nursery closed at 6pm and was an hour’s drive from the office in rush hour traffic.

The employer rejected this request citing that there would be a burden of additional costs, a detriment to the ability to meet customer demand, an inability to reorganise work among existing staff, an inability to recruit additional staff and a planned structural change. The Claimant alleged that her request for a flexible working pattern had not been considered or discussed with any merit and that the answer had been “no” with no explanation. The Claimant resigned.

Judgment

The Employment Tribunal ruled that the rejection of a flexible working pattern did put the Claimant at a disadvantage. It found that the Claimant had been the victim of indirect sex discrimination as, in the Employment Tribunal’s opinion, the company had not shown that the rejection of the proposed reduction in the Claimant’s working hours was proportionate to the needs of the business to maintain successful customer relations.

The Claimant was awarded a sum close to £185,000 made up of compensation from the successful discrimination claim, injury to feelings, loss of earnings and loss of pension contributions.

What does this show?

Flexible working has become somewhat the norm over the last 18 months with various Government imposed lockdowns and more people learning that it is possible to carry out their roles effectively from home. This case highlights the need for employers to be aware of the risks of discrimination or dismissal claims relating to flexible working requests.

Employers should reasonably consider flexible working requests and meet with the employee to discuss the request with them. If the request is rejected, the rejection must be proportionate and the employer should provide written reasons for their decision and allow the employer to appeal the decision. If the employer feels that the request cannot be accommodated in its current form, it should consider a variation to the request or a trial period. We recommend that you seek legal advice should you have any questions on how to process flexible working requests.

Ashtons’ Policy

At Ashtons Legal, in our pursuit to be the employer of choice, we have long since adopted a flexible working policy that works for both our business needs and our individual employees. Our policy enables our colleagues great flexibility in terms of the hours they work and the location they perform their hours from.

Ashtons Legal also boast a “Paid Time Off” annual leave policy meaning that, as long as the needs of the business are met and our excellent client service is continued during the colleague’s absence, our colleagues are not confined to an upper limit of annual leave.

Further information

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.