£184,961 award following refusal of a Flexible Working Request!
Thursday 23rd September 2021
An employer’s flexible working policy was held to be indirectly discriminatory on the grounds of sex, as the Employment Tribunal decided in Mrs A Thompson v Scancrown.
Facts
Mrs Thompson was employed as an estate agent in 2016. In May 2018, she informed her employer that she was pregnant and subsequently went on maternity leave. Before returning to work Mrs Thompson filed a formal flexible working request with the employer requesting to reduce her hours to accommodate collecting her daughter from nursery. The employer rejected her request for various business reasons, including that it would have a detrimental effect on the ability of the company to meet customer demand. Mrs Thompson appealed the decision and issued a claim in the Employment Tribunal. She subsequently resigned.
Law
An employee has the right to make a flexible working request provided they have worked for their employer for at least twenty-six weeks and they have not made a request in the previous twelve months. The request must meet certain requirements in order for it to be valid.
An employer can refuse a request on certain prescribed grounds, however, they cannot indirectly discriminate against an employee through the application of a provision, criterion or practice which is discriminatory in relation to a protected characteristic, unless it is a proportionate means of achieving a legitimate aim. Sex is one of these protected characteristics.
Decision
The Employment Tribunal found that the company’s policy, requiring employees to work from 9:00am – 18:00pm, placed women with children at a substantial disadvantage compared to men with children, thus Mrs Thompson experienced such a disadvantage. The Tribunal also found that the refusal of her request was not proportionate to the needs of the business and therefore indirectly discriminatory.
The Tribunal made an award for compensation totalling £184,961.32 after tax. This total included £13,500 for injury to feelings.
Comment
With many employers increasingly now offering flexible working after the easing of COVID restrictions, it is important that you consider carefully before refusing requests, or it could be costly. Employers run great risk if they pay lip service to the request and use trite reasons to say “no”. Have a flexible working policy in place.
If you would like to discuss this further, then please contact one of our employment experts below. To view the full September Employment Law Update, click here:
