Jordan Bruce is a Solicitor at specialist employment law firm, Collingwood Legal. Jordan considers a recent Employment Appeal Tribunal decision on flexible working and indirect discrimination.
The Flexible Working Regulations 2014 provide a statutory mechanism for managing flexible working requests, but employers should be mindful that compliance with the Regulations does not necessarily protect them from indirect discrimination claims if a request is rejected. Indeed, rejecting a request may give an employee cause to resign and claim constructive dismissal. A recent case in the Employment Appeal Tribunal (“EAT”) demonstrates these risks.
A request rejected and then accepted
Glover v Lacoste UK Ltd involved an employee who worked five days a week. Before returning to work from maternity leave, Ms Glover made a flexible working request to change her working days to three days per week in order to accommodate childcare. This was rejected. On appeal, the employer offered her the option of working four days per week on a fully flexible basis (i.e. she could be required to work on any four days of the week, including weekends). Ms Glover rejected this as it could not be reconciled with her childcare arrangements.
Ms Glover’s solicitor wrote to Lacoste requesting that they reconsider their decision. Failing this, the letter warned that Ms Glover would have no option but to resign and claim constructive dismissal. Lacoste changed their position and accepted her original request and Ms Glover returned to work on this flexible working pattern.
What did the Tribunal and EAT hold?
Ms Glover bought a claim of indirect sex discrimination alleging that the requirement to work fully flexibly put women at a particular disadvantage (due to women being more likely to bear a greater burden in respect of childcare) and that she was put to this disadvantage. Her claim failed in the Employment Tribunal as it held that, as the decision to reject the request was reversed before she returned to work, the requirement to work fully flexibly had not applied to her. Ms Glover appealed this decision.
The EAT upheld her appeal. It held that when Lacoste decided to reject her request with no further right of appeal, the requirement to work flexibly applied to her, even if she had not returned to work. The issue of whether Ms Glover was subjected to a disadvantage because of this requirement was remitted to a new Employment Tribunal (although the EAT Judge suggested it would be unlikely that no disadvantage existed in this case).
What should employers note from this case?
The EAT has confirmed that, depending on the facts, an employee’s successful appeal of a decision to reject a flexible working request will not extinguish liability in respect of any discriminatory disadvantage suffered by the employee until that point. Employers should consider, before rejecting a flexible working request, whether the existing working arrangement may cause the worker a discriminatory disadvantage and whether this can be objectively justified.
Lacoste originally rejected the request due to business needs and only at appeal stage was an alternative working arrangement suggested which would not have involved a change of role. Legislative reform, in the form of The Employment Relations (Flexible Working) Bill, would require employers to consult with employees before rejecting a request. This requirement may provide an opportunity for both parties to agree a mutually agreeable work pattern before any decision is made.
Since the COVID – 19 Pandemic, employees have a greater expectation of flexible working, including hybrid working, being available. Collingwood Legal will be hosting a webinar on May 18 2023 at 10am. The webinar will cover the changes in flexible working legislation and cover top tips in handling requests for hybrid working.
Register here:
collingwoodlegal.com/event/collingwoodlegal-webinar-top-tips-managing-hybridworking
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