In two recent unsuccessful cases, employment tribunals accepted that there is no absolute obligation on employers to accept new mothers’ requests to work flexibly on their return from maternity leave. Stephen Simpson rounds up recent employment tribunal decisions.
In Whiteman v CPS Interiors Ltd and others, the employment tribunal held that an employer properly handled a new mother’s rejected flexible working request to work from home.
Flexible working requests: tribunal’s view in Whiteman
“It is a perfectly proper answer to a flexible working request for an employer…to say ‘granting this request would not be in the best interests of our business; we believe what has been requested would be detrimental to our business in that, at best, it would cause us minor but more than minimal inconvenience’…
“…although it may in certain circumstances be uncharitable to do so, it is not unreasonable for an employer to put… its own interests above those of the employee when considering a flexible working request.”
Ms Whiteman, a designer for a company that refurbishes commercial premises, requested to reduce her hours on her return from maternity leave after having twins. Her employer accepted her request.
However, the employer turned down Ms Whiteman’s request to work from home (apart from occasional office visits) and to do most of her work in the evenings (after 6pm).
The employer considered that, although working at home primarily in the evenings might have been possible, it could not accommodate the homeworking request because:
- its collaborative way of working often involves designers together in a room looking at technical designs; and
- designs often have to be changed at short notice, something that would be difficult if the employee worked only at home in the evenings.
Ms Whiteman resigned, citing the handling of her flexible working request as the reason. She rejected the employer’s offer to deal with her complaints under the company’s grievance procedure and to retract her resignation.
She brought tribunal claims for breaches of the flexible working legislation, constructive dismissal and indirect sex discrimination.
The employment tribunal rejected all her claims, stressing that there is no right to work flexibly, only a right to request to work flexibly.
Employers must follow the “Acas code of practice on handling in a reasonable manner requests to work flexibly”. However, as long as their approach is not discriminatory, they can reject a flexible working request on one of the specified grounds under the legislation.
In Smith v Gleacher Shacklock LLP, the employment tribunal held that it was not indirect sex discrimination for an investment banking firm to require a mother to work full time.
Ms Smith, a single parent working as an executive secretary for a small investment bank, was returning from maternity leave.
She asked to work three days per week in the office, followed by homeworking on Thursdays and not working on Fridays.
Following a meeting, her employer turned down her flexible working request because of the:
Flexible working requests: tribunal’s view in Smith
“…the flexible working arrangements…would…have had a detrimental effect on the respondent’s business in terms of the quality of service…
“…in the context of the nature of the respondent’s business, its relationship with its clients and with other bodies such as its regulator, and in the context of the size of the respondent’s business [the effect] would be significant and substantial.”
- impact on the firm’s ability to look after clients;
- unpredictability of her role;
- tight timescales for various tasks; and
- disproportionate pressure on the small team.
Recent examples were given of difficulties that would have occurred had Ms Smith not been in the office. These included assisting with a “highly important” call from the Financial Conduct Authority.
Ms Smith’s appeal against the rejection of her flexible working request was unsuccessful.
The employer made various compromise suggestions, including that she could leave early for nursery runs and initially return on a part-time basis.
Agreement could not be reached and Ms Smith brought tribunal claims for indirect sex discrimination and breaches of flexible working legislation. She later resigned.
The employment tribunal rejected Ms Smith’s claims.
The tribunal accepted that requiring full-time working places women at a particular disadvantage compared with men because women are more likely to be sole parents than men.
However, the tribunal did not believe that the requirement placed Ms Smith at a particular disadvantage. She conceded that she would be financially better off working full time and engaging childcare on Thursday and Fridays.
The tribunal concluded that, in any event, the employer’s stance was justified. The employer’s legitimate aim is to “ensure that its partners and clients receive high-quality, efficient secretarial support throughout the week, without problematic handovers”.
The employer’s means of achieving its aim were found to be proportionate, with the disadvantage caused to the claimant outweighed by the needs of the business.
Other tribunal decisions in the headlines
Flybe air stewardess wins sex discrimination case
An air stewardess has won a sex discrimination case against the airline Flybe because it refused to negotiate working hours after she had a baby, reports the Birmingham Mail.
Journalist wins £50,000 after not prioritising royal birth story
A BBC journalist secured a £50,000 payout for being sacked after prioritising a story about Sri Lanka over the birth of Prince George, according to the Independent.