Flexible Working Requests: proceed with care!
Ms Thompson, a sales manager at a small lettings agency in central London, took maternity leave from October 2018 to October 2019. On returning to work, she made a request for flexible working. She asked to work a four-day week and to finish work an hour early, to allow her to collect her baby from nursery before it closed at 6pm.
Her request was refused on the basis that it would cost the company too much money; her absence would play a detrimental role to the company’s ability to meet customer demands. Further, the existing staff would not be able to carry her workload and that recruiting any additional staff was not a viable option.
The Employment Rights Act sets out the law on flexible working requests. Whilst there is no duty for an employer to grant a flexible working request, the request must be taken seriously and dealt with in a structured way. Although the tribunal sympathised with the needs of a small company to remain competitive, it found that the company had given insufficient consideration as to why the claimant’s new proposed terms would cause any of these things to happen.
As a result of the company’s refusal to allow the flexible working request, the claimant accused the respondent of indirect sex discrimination. Indirect discrimination can occur where a policy, practice or procedure is put in place that appears to treat everyone equally but, in practice, is less fair to those with a certain protected characteristic under the Equality Act 2010 (including sex, race and age).
To demonstrate that the refusal to allow Ms Thompson’s request for flexible working amounted to indirect sex discrimination, she relied on a 2018 survey carried out on behalf of Direct Line Insurance. With a sample size of 2,011 individuals, the survey concluded that 64% of mothers are considered to be the primary caregiver to their children. The tribunal agreed that this demonstrated that there exists an expectation that women will face the brunt of childcare duties.
The tribunal found that it is likely that the respondent would have treated any employee’s request for flexible working the same, no matter the sex, due to the high demands on a small lettings agency. However, as a result of this blanket refusal, women with children were at a disadvantage. Proper consideration of flexible working arrangement is needed to fully satisfy the refusal to approve the claimant’s proposal.
The tribunal found that the allegation of indirect sex discrimination, on the grounds of the company’s failure to properly consider Ms Thompson’s flexible working request, to be proved. She was awarded a sizeable sum in compensation.
Employer’s must be careful to follow the appropriate procedures when considering a flexible working request, and be careful to undertake a meaningful assessment as to the needs of both the employee and the needs of the business.
If you have any questions about the issues discussed in this article please contact us on 0207 388 1658.