Employment Law Update – September 2021
Monday 27th September 2021
£184,961 award following refusal of a Flexible Working Request!
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 require any further information on how to deal with a flexible working request, or on drafting a flexible working policy, please get in touch with one of our team.
Can fully vaccinated employees choose to self-isolate?
Legislation came into force on 16th August 2021 stating that people who are ‘double-jabbed’ are no longer legally required to self-isolate so long as they do not test positive for the virus themselves. Whilst previously the question had been whether employees could ignore being “pinged” on the NHS App, the question is now turning to whether employees who have been “pinged” can choose to self-isolate, despite being double-vaccinated.
Compelling staff to attend work when they prefer to self-isolate brings potential risk of constructive dismissal claims. Employers must therefore show reasonableness in the decision they make – can the employee work from home? Are they able to carry out their role as normal? If employees were unable to carry out their role at home there would be more justification for refusal.
The flip side is that employers will have to manage concerns from vulnerable employees regarding potentially infectious staff members too and actioned in fulfilment of an employer’s general duty to ensure their workers’ health and safety (more of that below).
Employees who self-isolate voluntarily and cannot work from home will not be able to qualify for statutory sick pay and furlough will no longer be an option to employers, with the scheme coming to an end this month. Given the employee has chosen not to work, they do not have any right to be paid, however, you could use your discretion to agree that they use holiday.
If the employer wishes to compel an employee to self-isolate even though they are fully vaccinated, they can do so but they will be required to keep the employee on full pay as the employee would otherwise be ready to work. Alternatives would be the use of daily/weekly lateral flow testing, social distancing and PPE.
Sending a pregnant worker home to avoid COVID risk: protective measure or sex discrimination?
As we move further in 2021 we are seeing claims arising from the first lockdown make their way through the tribunals. Covid has posed interesting and often difficult questions for employment lawyers and now Judges over the last 18 months, particularly in relation to vulnerable workers.
In the case of Prosser v Community Gateway Association Ltd, the question for the tribunal was whether sending a pregnant employee home in line with government guidelines constituted sex discrimination.
Ms Prosser informed her employer that she was pregnant in March 2020, 10 days before the first lockdown. Guidance at the time noted pregnant women as clinically vulnerable and Ms Prosser was sent home on 17 May. She was paid her average wage of 4 shifts a months and returned to work in August 2020, once the employer had been able to put covid-secure measures in place.
Ms Prosser claimed that the decision to send her home and to not let her return to work had been sex discrimination. In most circumstances sending a worker home would undoubtedly be ‘unfavourable treatment’ and doing so on the basis of their pregnancy would almost certainly amount to direct discrimination, yet it seems absurd that employers following government guidelines to protect pregnant women could be found liable for sex discrimination.
The tribunal dismissed the claim on the basis that Ms Prosser had not suffered unfavourable treatment due to her pregnancy. Instead, her employer had made the decision in accordance with government guidelines on public health and she had not suffered financially.
If Ms Prosser had been sent home without pay perhaps the outcome would have been different as she would have suffered a detriment. The tribunal may, however, have considered that sending a pregnant employee home in such circumstances is a fulfilment of their general duty to ensure their workers’ health and safety. Under the Equality Act 2010 such behaviour is excluded from being considered pregnancy discrimination.
This decision is not binding, but it does indicate that the tribunal is not seeking to punish employers where they have followed government guidelines in good faith, particularly where vulnerable staff have been sent home for their own safety and especially where they have suffered no financial detriment.
