As more businesses look to encourage people back to the office how flexible should they be and could refusing flexible working requests constitute indirect discrimination, asks barrister Jade Ferguson.
Flexible working is evolving rapidly, and an increasing number of people are seeking more freedom over when, where and how they fulfil their role.
Employees are seeking to break out of the traditional and rigid structure of working 9-to-5 in the office and employers have seen a sharp rise in flexible working requests since the pandemic.
At the end of 2021 the government consulted on introducing a day one right to request flexible working but at the time of writing has yet to come to any conclusions on the issue.
Although there is not a burden or an obligation on an employer to agree to all flexible working requests, it is imperative that employers understand how to handle flexible working requests and consider the risks associated with them.
Although working from home is unlikely to become a strict legal right for everyone, employees who are called back into the office after having enjoyed the benefits of hybrid or remote working may turn to statutory flexible working requests.
Women who are seeking flexible working for childcare reasons will have the added layer of protection from discrimination laws as highlighted in the cases below:
Thompson v Scancrown Ltd
In Mrs Alice Thompson v Scancrown Ltd T/a Manors ET/2205199/2019, the employment tribunal (‘ET’) found that refusing an employee’s flexible working request to modify her working hours to accommodate her childcare responsibilities was indirect sex discrimination.
The claimant was employed as a sales manager by the respondent, a small independent estate agency firm. The normal working hours of the office were 9am to 6pm.
On the claimant’s return from maternity leave, she applied to modify her working hours in order 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 pick her child up from nursery in time.
The respondent refused the request, detailing five business reasons for their decision. The reasons given for declining the claimant’s request included an inability to reorganise work among other employees and an inability to meet customer demand. Following the refusal of the flexible working request, the claimant resigned and filed several claims, including a claim for indirect sex discrimination.
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Section 19 of the Equality Act 2010 (“the Act”) defines indirect discrimination:
“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.”
Indirect discrimination is concerned with decisions or policies which, in practice, have the effect of placing a group of people with a particular protected characteristic at a disadvantage. Sex is included as a relevant protected characteristic under the Act.
In the present case, the employment tribunal had to consider whether the employer’s practice had put the claimant at a disadvantage because of her sex. It was argued that the practice for sale managers to work full time 9am-6pm, Monday to Friday, was a practice which placed women with children at a substantial disadvantage compared with men with children.
When a PCP has the effect of placing a group of people with a protected characteristic at a disadvantage, it will amount to indirect discrimination unless the employer can objectively justify the PCP. This means they have to demonstrate that the PCP is a proportionate means of achieving a legitimate aim, otherwise indirect discrimination will be established.
The tribunal upheld the indirect discrimination claim and found that the respondent’s failure to consider this flexible working request put the claimant at a disadvantage as a result of the PCP as this meant that she was unable to collect her child from nursery.
The ET also considered whether the respondent had an objective justification for the provision. It was noted that although the recognised the respondent’s business concerns, they did not outweigh the discriminatory impact on the claimant.
The claimant was therefore found to have been indirectly discriminated against on the grounds of sex and was awarded £184,961.32 for loss of earnings, loss of pension contributions, injury to feelings, and interest.
Dobson v North Cumbria Integrated Care NHS Foundation Trust
In another recent case, Ms G Dobson v North Cumbria Integrated Care NHS Foundation Trust, the employment appeal tribunal (EAT) ruled that employment tribunals must accept as fact that women are still more likely to bear the primary burden of childcare responsibilities and this often hinders their ability to work certain hours.
The claimant was employed as a community nurse by the Trust. She had three children, two of whom were disabled. Due to her childcare responsibilities, she only worked two days per week.
In September 2016, the Trust asked its community nurses to work the occasional weekend (but not more than once a month). The claimant refused due to her childcare commitments. Due to her refusal, she was dismissed.
The claimant brought multiple claims including a claim for indirect discrimination on the grounds of sex. Her claim was dismissed by the employment tribunal and so she appealed to the EAT.
The claimant argued that the employment tribunal ought to have accepted that women are more likely than men to bear the bulk of childcare responsibilities and that this may limit their ability to work certain hours. This fact had already been acknowledged in many previous employment cases.
The EAT agreed that the employment tribunal should take “judicial notice” (accept as a fact without evidence) that there is a childcare disparity. The EAT held that “While things might have progressed somewhat in that men do now bear a greater proportion of child care responsibilities than they do decades ago, the position is still far from equal.”
Tips for employers
The above recent cases have reaffirmed the need for employers to carefully consider all flexible working requests. Before rejecting proposed changes, employers should not only assess their practices and business needs, but also ensure consideration is given to whether the employee making the request may have a protected characteristic and whether they are likely to suffer a disadvantage.
Employers need to consider:
1. Try to be as flexible as possible and treat the request as a conversation with the employee in order to identify a pattern that works for both parties. If the request has been refused for a business reason, can an alternative working arrangement be agreed with the employee? Even if this proves not to be possible, this will assist employers in demonstrating that they have acted reasonably.
2. Offering a trial period may provide a way to assess the impact of modified working arrangements in workplace and whether the request can work in practice.
3. When considering a flexible working request, employers should keep clear records of their reasoning when making decisions.
4. Employers should ensure they remain fair and consistent in their treatment of flexible working requests.
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5. Employers should consult their existing policies and practices for flexible working, which ideally will incorporate the statutory requirements and principles outlined above and from the Acas code of practice.
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