A woman who was refused flexible working after maternity leave and lost her claim for indirect sex discrimination has had the decision overturned at appeal.
Melissa Glover worked as a manager at fashion retailer Lacoste and was on maternity leave when she submitted a flexible working request, asking to work three days a week, but this was rejected as the company said all managers had to work full time.
She appealed and they offered her four days a week, but under the condition that she was fully flexible as to which days –something that would be difficult in terms of securing childcare.
Glover sought legal advice and appealed this decision, upon which Lacoste said it would agree to four days to be worked flexibly on any day, to be offered on a six-month trial period.
The solicitor asked for the arrangement to be made permanent, but this was refused. Her solicitor wrote to Lacoste to ask for this to be reconsidered, failing which Glover would have no option other than to resign and claim constructive dismissal.
In April 2021, the company wrote back to Glover and agreed to her original request, although she was on furlough as it was mid-pandemic.
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The following month, Glover submitted a claim to the employment tribunal asserting a breach of flexible working provisions and indirect sex discrimination. The day before the tribunal, she applied to amend her claim to include “provision, criterion or practice” (PCP) that included the requirement for flexible working.
The initial tribunal rejected her claim based on the fact Lacoste required full-time working. It ruled that the PCP requiring flexible working had not been applied (she was never required to work full time) and therefore she had not suffered disadvantage. The judge referred to previous cases where – because the process was ongoing – the provision never applied.
The Employment Appeal Tribunal disagreed with this decision, holding that the PCP requirement was applied for indirect discrimination purposes, even though the decision was reversed before her official return to work.
It also argued that the case law invoked by the initial tribunal was applied wrongly, and irrelevant factors were taken into account when making the decision.
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The claim has now been returned to the employment tribunal to determine any further unresolved issues and to decide on compensation.
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