Managing Flexible Working Requests

Managing Flexible Working Requests – What happens when employees get it wrong?

Key Contact: Claire Knowles

Author: Yannick Ramsamy

Hybrid and flexible working arrangements have become common place arrangements amongst employers. However, a recent tribunal judgment demonstrates the significant consequences which can arise if employers do not carefully manage and consider flexible working requests. The case has attracted a lot of press attention due to the publication of the tribunal’s remedy judgment confirming an award of £184,961.32 being made as compensation for indirect discrimination because of sex.

Mrs A. Thompson v Scancrown Ltd, trading as Manors ET/2205199/2019

The claimant, Mrs Thompson was employed by the respondent, Scancrown Ltd as an estate agent sales manager.

Whilst on maternity leave, the claimant decided to explore flexible working arrangements as part of her return to work. During these discussions, the claimant asked if it was possible, to finish work at 5pm and not 6pm. This was due to her child’s nursery closing at 6pm, and the nursery being an hour’s drive away during rush hour. Discussions were also had around the claimant using up her annual leave to assist with her transition. The claimant’s informal flexible working request was rejected.

The claimant lodged a formal grievance, which raised allegations spanning from the start of her pregnancy up until the rejection of her informal flexible working request. The grievance also included a formal flexible working request which was rejected. The respondent rejected the flexible working request due to:

  • 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; and
  • planned structural change.

The respondent also explained that building and maintaining client relationships is an essential feature of sales and, that, for continuity purposes, their clients expect consistency in the sales manager they deal with, which is a further reason why it would not be suitable to recruit additional staff to cover the claimant’s proposed reduction in hours.

The claimant presented the following claims to the employment tribunal:

  • discrimination because of pregnancy or maternity leave;
  • harassment related to pregnancy and maternity;
  • unauthorised deductions claim (referral fees);
  • unfair dismissal claim; and
  • indirect sex discrimination.
Findings

The employment tribunal dismissed the claimant’s claims save for in relation to indirect sex discrimination. The key factors in deciding that her indirect discrimination claim succeeded were:

  • The provision of neutral effect is the requirement that the sales manager work full-time, 9-6pm, Monday to Friday.
  • As part of her evidence, the claimant provided sufficient research publications to demonstrate that this provision places more women with children at a substantial disadvantage than men with children. Notwithstanding a shift in societal attitudes, it is still the case that mothers are more likely to carry primary childcare responsibility than fathers.
  • The nursery closing at 6pm aligned with standard office hours, and therefore, a requirement to work until 6pm each day did place the claimant at a disadvantage, as the claimant would not be able to get to the nursery in time.
  • The respondent could not justify the provision as a proportionate means of achieving a legitimate aim, based on the reasons put forward for not accommodating the flexible working request. The tribunal acknowledged the respondent’s caution around changing the make-up of a sales team, particularly during a time of commercial uncertainty and gave some weight to this. However, the key point was that the difficulty of making adjustments as to who picked up the claimant’s work did not outweigh the discriminatory impact on her.
  • The respondent provided no evidence to show that the refusal of the proposed reduction in hours of work was proportionate to the real need of the business to maintain successful customer relationships.

The remedy hearing judgment issued by the tribunal on 25 August 2021, confirmed that the claimant would be awarded £184,961.32 as a total award for loss of earnings, pension contributions, injury to feelings and interest.

Learning Points

This case is indicative of the significant costs which can arise on the part of employers if due consideration is not given to flexible working requests. Equally, in addition to assessing flexible working requests based on the statutory criteria, it is important to assess whether the current working arrangements being adopted could potentially have a discriminatory impact. A key factor in the tribunal’s finding of indirect sex discrimination is that, on the evidence, the tribunal was not satisfied that the respondent could not have taken steps to account for the claimant’s proposed adjustment to her workings hours. Crucially, the respondent had employed an individual, Ms Purchase as maternity cover for the claimant. As it was always intended that Ms Purchase would continue working for the respondent following the claimant’s return, the tribunal took the view that the respondent could have made arrangements for Ms Purchase to cover the claimant’s work whilst the claimant dealt with her childcare commitments.

If you would like to learn more about the impact of this case or have any concerns regarding the hybrid and flexible working arrangements currently implemented within your business, please feel free to contact the employment team.

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