Flexible working rights and indirect discrimination
Andrew Egan from Andrew Egan Associates with advice for employers on employment law
THERE are an increasing number of claims in recent times, especially from women, who have made a requests for employers to accommodate their added childcare responsibilities.
A recent employment tribunal case has highlighted the importance of ensuring that flexible working requests, especially from women who have childcare responsibilities, are dealt with properly and given proper and appropriate consideration before being rejected by an employer. In Mrs Alice Thompson v Scancrown Ltd T/A Manors, the employment tribunal (‘ET’) held that refusing an employee’s flexible working request to modify her working hours to accommodate her childcare responsibilities was indirect sex discrimination. Mrs Thompson was employed as a sales manager by the company, a small independent estate agency firm.
The normal office working hours were 9am to 6pm.
On her return from maternity leave, she applied to modify her working hours to accommodate the closing time of the nursery that her child attended.
She submitted a request to finish at 5pm instead of 6pm. so that she could collect her child from nursery in time. Originally, she asked to reduce her hours from five to four days a week and to leave at 5pm instead of 6pm so she could pick up her daughter from nursery on working days.
Ultimately, her request was rejected and no alternative suggestions were put forward, and after a series of appeals, she resigned.
The tribunal accepted
Mrs Thompson’s evidence that, despite a move to change social attitudes, it is still mothers, rather than fathers, who are more likely to carry primary child care responsibilities and as a group, would be disadvantaged by the requirement to work until 6pm.
The tribunal then considered whether Mrs Thompson was at this disadvantage, and found this to be the case.
The law states that when an employee makes a flexible working request under the formal statutory process, an employer must: n Deal with it in a reasonable manner n Notify the employee of their decision within the decision period (usually three months from the date on which the employee’s request is made, unless a longer period is agreed)
n Only refuse a request on one or more of the following eight grounds:
1. The inconvenience of additional costs
2. A detrimental effect on the employer’s ability to meet customer demands
3. The inability to reorganise work amongst existing staff 4. The inability to recruit additional staff 5. A damaging impact on quality
6. A negative impact on performance
7. An insufficiency of work during the time the employee proposes to work
8. Planned business structural changes.
If an employer does not deal with the request on the grounds stated above, then the employee can potentially bring a claim for damages. This would include failing to deal with the employee’s application in a reasonable manner, failing to notify the employee of the decision on their application within the decision period, rejecting the application for a reason other than one of the eight statutory grounds, and basing the employer’s decision to reject the application on incorrect facts.
So, if an employer dismisses an employee’s formal request without giving it thorough consideration or suggesting alternatives to that request, they risk facing a claim for discrimination which can be costly, as in the Thompson case, where the award for indirect sex discrimination was £185,000.
Employers should therefore consider: a. If the flexible working request has been refused for a business reason, is there an alternative working arrangement be agreed with the employee? b. Can the requested flexible working be put in place for a trial period?
If a trial period is used for a reasonable length of time, will the employer be able to assess the impact of the modified working arrangements on their workplace?
Employers should keep clear records of their reasons when making decisions, and ensure that they are consistent in their treatment of flexible working requests.
Employers should also check their existing procedures on flexible working, which should incorporate the statutory requirements set out above and from the ACAS Code of Practice.
For advice call Andrew on 07904 391756 or (01635) 890560.
“Employers should ensure that they are consistent in their treatment of flexible working requests