Mother Wins Sex Discrimination Claim Against Employer Who Refused Her Flexible Working Request To Finish Early

An Employment Tribunal (ET) has ruled in favour of a Mother who made a flexible working request so that she could finish work early, in order to pick up her child from nursery, and work a four-day week but had her request refused by her employer.

Mrs Alice Thompson v Scancrown Ltd T/a Manors: 2205199/2019

Case background

Ms Alice Thompson worked as a Sales Manager at a small independent estate agent based in central London, Manors. She began working at the company in October 2016.

According to Mrs Thompson (during the ET proceedings), she was ‘successful’ in generating sales income and was ‘well thought of’ by her employer and Company Director, Mr Paul Sellar. However, when Ms Thompson became pregnant in October 2018 and she informed Mr Sellar, the relationship began to deteriorate.

Whilst the news was reported as being celebrated – with Mr Sellar taking the team to a private members club – it was alleged, by Mrs Thompson, that he said to a colleague at the party:

Mr Sellar denied having made this comment at the party. Mrs Thompson also claimed that when she and her work colleagues were taken on a trip to New York, she was made to feel ‘excluded’ as other staff members had gone drinking whereas she went shopping and returned to the hotel instead. When Mrs Thompson complained to Mr Sellar that this made her feel ‘isolated’, he responded by saying that her reaction was ‘ungrateful’ as the trip had cost him £25,000.

Additionally, when Mrs Thompson confirmed the details of her maternity leave in October 2018, she provided a document that detailed 11 ongoing deals on which she anticipated receiving a commission. However, Mr Sellar informed Mrs Thompson that she would only be paid a commission on the deals registered in the document up to her last day prior to her going on maternity leave and those completed after she returned to work.

Mrs Thompson claimed that her employer also made her feel like she was leaving the business when she went on maternity leave as she was informed to return her office keys and mobile phone.

Whilst Mrs Thompson was on maternity leave, she went into the office to speak with Mr Sellar to hopefully clear any animosity that existed between them. However, she claimed that Mr Sellar told her she was being too emotional due to her being pregnant.

Prior to Mrs Thompson’s return to work from maternity leave in 2019, she asked her employer if she could shorten her hours, work a four day week and leave work at 5pm, rather than the business’ standard end of the day time of 6pm, in order to collect her daughter from nursery.

However, this flexible working request was declined as Mr Sellar said the business could not afford for her to work part-time. Mrs Thompson claimed her request was not fairly considered and that she would have been willing for her employer to make her an alternative counter offer. She subsequently resigned from the company and brought a claim against Manors for indirect sex discrimination. Mrs Thompson said she brought the claim to ensure that her daughter does not have to endure ‘the same experience’ when she is older.

The ET ruled in favour of Mrs Thompson and awarded her almost £185,000 in compensation. The ET found that making Mrs Thompson work until 6pm – which is the time when nurseries typically close – placed her at a ‘disadvantage’.

Flexible working requests – what are the current laws?

Under current UK laws, employees with a minimum of 26 weeks’ continuous employment can make a request once every 12 months for flexible working under the statutory flexible working scheme which changes the terms and conditions of employment relating to the number of hours they work, the times in which that work is carried out and where is it carried out.

In order for a request to be a valid request, it must contain certain prescribed information, as set out in the Employment Rights Act 1996, which includes:

• The changes the employee would like to make;
• The date in which the employee would like those changes to be effective from; and
• What impact the employee thinks the changes could have on their employer and how that could be dealt with in practice.

It is important to note that the legal right is for an employee to make a request to their employer and to have that request properly considered but not to insist that their employer makes the changes requested. However, an employer may only refuse a request if one or more of the prescribed grounds apply, for example:

• The burden of additional costs associated with the changes;
• Inability to re-organise work among existing employees or recruit additional staff to cover work;
• A negative impact on performance; or a
• Detrimental impact on the ability to meet customer demand.

Whilst the right to make a flexible working request is only available to employees with the necessary service, employees who do not strictly qualify are still able to make an informal request for flexible working.

How should employers handle flexible working requests?

In line with current laws, an employer must notify an employee of its decision regarding their flexible working request within the ‘decision period’ (including its decision on any appeal against an original decision), which is the period of three months from the date the request was made. This date will depend on the method the request was delivered by and we recommend seeking professional advice regarding this to ensure compliance with the rules.

If an employer thinks that it is not feasible for them to deal with and/or provide them with a decision within that time frame, then it is open to the employer to seek the employee’s agreement for a longer time period to consider the request.

Consequently, it is advisable that employers consider any flexible working request it receives as quickly as possible and gives it reasonable consideration.

Whilst there is no fixed process that employers must follow when considering a flexible working request, ACAS has issued a Code of Practice on how to handle flexible working requests. Every employer should refer to this, not least because any ET would have regard to the relevant provisions of it when considering a claim from an employee that their employer did not deal with their request in a reasonable manner. Broadly speaking, this suggests an employer should:

• Discuss any request with an employee as soon as possible and allow them to attend the meeting with an accompanying colleague to discuss the request. However, if an employer intends to grant the request without question, a meeting is unlikely to be needed.
• Employers should consider all requests carefully, weigh up the benefits of the request for the employee and company against any potential adverse impact and ensure that any decision is not discriminatory.
• The employers’ decision should be communicated to the employee as soon as possible (in writing) setting out clearly any grounds for rejection and, if rejected, allow the employee to appeal that decision.

Once the request is considered, if the employer feels that it cannot be accommodated in its current form, it should consider whether it could be accepted but with modifications or whether a trial period could be implemented to test the impact of the changes in reality.

ET claims

Employers need to be aware of the risks of discrimination claims or dismissal claims associated with flexible working requests, such as the above case.

If a request is refused but the decision is deemed to be discriminatory, it is extremely likely that this will be held to be a fundamental breach of an employment contract, entitling an employee to resign in response to that breach and claim constructive dismissal. In addition, any dismissal of an employee where the principal reason for dismissal is related to the employee making a flexible working request, bringing a claim relating to flexible working or being selected for redundancy on grounds relating to flexible working will be automatically unfair.