Flexible working requests and indirect discrimination

Importance of considering flexible working requests carefully

The recent Employment Appeal Tribunal decision in Glover v Lacoste (UK) Ltd demonstrates the importance of considering flexible working requests carefully from the outset. The Employment Appeal Tribunal ruled that an employer had potentially discriminated against a woman returning from maternity leave when it agreed a request for part-time work, but required her to work a flexible work pattern (which did not fit in with her childcare arrangements). This was despite the fact that the employer subsequently agreed to her request to work set days and so never actually required her to work a flexible work pattern.

The employee’s flexible working request

Ms Glover worked as an assistant store manager, and prior to going on maternity leave, she worked full-time, five days a week, on a flexible basis as set out in a rota. While on maternity leave, she made a flexible working request, asking to work part-time, three days a week. Her request was refused and she was given a right to appeal. On appeal, her employer offered her four days a week, but required these to be worked flexibly on any day of the week. This option did not work for Ms Glover, as it was impossible to reconcile with her childcare arrangements. She sought legal advice, and her solicitor wrote asking her employer to reconsider her request, failing which she would have no option but to resign and claim constructive dismissal. At this point, her employer agreed her original request and she returned to work.

The indirect sex discrimination claim

Ms Glover brought a claim for indirect sex discrimination, arguing that her employer’s original requirement for her to work flexibly was a provision, requirement or practice (PCP) which put her at a disadvantage and could not be justified. The employment tribunal rejected her claim, finding that no PCP had been applied to her and she had not suffered disadvantage (as she had never in fact been required to work flexibly). It went on to rule that had the PCP been applied, it did put women at a particular disadvantage (because of the difficulties this would cause with childcare) and would not have been justified.

Ms Glover appealed to the Employment Appeal Tribunal, which overturned the employment tribunal’s decision, ruling that the requirement to work on a fully flexible basis (the PCP) had been applied to Ms Glover at the appeal stage, which was when her flexible working request had been determined. It sent the case back to the employment tribunal to consider whether she had suffered disadvantage as a result, but said it was hard to see how she had not suffered disadvantage when her appeal had been decided against her and she felt she had to consider resigning.

What does this mean for employers?

Refusing a woman’s flexible working request will commonly give grounds for an indirect sex discrimination claim. Tribunals accept that women bear a greater burden of childcare responsibilities than men, and that this can limit their ability to work certain hours, such as working nights or changeable hours. Employers need to consider flexible working requests carefully from the outset and be alert to the risk that their decision could be challenged as discriminatory (and not just on grounds of sex, but also, for example, on grounds of age, disability or religion/belief). Changing a decision on appeal will not eliminate earlier disadvantage suffered by an employee, meaning they can still succeed in a discrimination claim and be awarded compensation for injury to feelings if the decision cannot be objectively justified. 

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