September 8, 2021
Employment Law

Flexible working is not something that came about because of Covid-19. It is also a legally protected employee right to request a change in their work hours/nature. For Alice Thompson, an estate agent who left her job after being unable to attain flexible working hours, it was an opportunity to sue her former employer. She was successful and eventually awarded £185,000 for indirect sex discrimination. The main reason being that no serious counteroffer was made to Ms Thompson’s flexible working request. It was also found that the reasons given by the estate agents for rejecting her offer were unsubstantiated. This blog details how organisations can comply with the regulation of flexible working requests.

Flexible working – employee rights

Every employee has a statutory right to ask to work flexibly after working for their employer for at least 26 weeks. A flexible working request can be made once in any 12-month period. Employees can ask to:

  • reduce hours to work part-time
  • change start and finish times
  • have flexibility with start and finish times
  • do their hours over fewer days
  • work from home or elsewhere, all or part of the time
  • share the job with someone else

Such requests can be for:

  • all working days
  • specific days or shifts only
  • specific weeks only, for example during school term time
  • a limited time, for example for 6 months only

Flexible working – employer obligations

As an employer, upon receiving a flexible working request, you must look at the request fairly following the Acas Code of Practice and make a decision within a maximum of three months. After receiving a request, you should arrange to talk with your employee as soon as possible. If you intend to approve the request this may not be necessary. The employee is allowed to be accompanied by a work colleague to any such meeting, and you should make them aware of this. The discussion should take place in a private place.

You will need to consider the request carefully by weighing the potential positives and negatives to the business and employee. You should inform your employee of your decision in writing. If you wish to change or negotiate the nature of the request, you should discuss this with the employee. If you reject the request, it must be for one of the business reasons set out in the legislation (Employment Rights Act 1996 Part 8A Flexible Working):

  • the burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to re-organise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • planned structural changes
  • such other grounds as the Secretary of State may specify by regulations

Employees will be allowed to appeal the decision – make sure you speak to the employee throughout this process as there may be things overlooked which a short conversation can rectify. Importantly, the law requires that all requests, including appeals, are decided within a period of three months. Unless you agree to extend this period with the employee. Therefore, it would be prudent to deal with the request as soon as possible. Furthermore, if an employee fails to attend two consecutive meetings concerning the same issue around a request, including an appeal, with no good reason, then the employer may consider the request withdrawn. The employee must be notified of this withdrawal.

Flexible working – discrimination

When making your decision around whether or not to accept an employee flexible working request, you must not discriminate unlawfully against the employee. This was how Ms Thompson, the estate agent, was recently able to successfully sue for £185,000, on the grounds of indirect sex discrimination.

The Equality Act 2010 implemented the principle of equal treatment for men and women as regards access to employment, vocational training, promotion and working conditions. Under the act it is unlawful for an employer to:

  • Discriminate directly by treating a job applicant or employee less favourably than others because of sex.
  • Discriminate indirectly by applying a provision, criterion or practice that disadvantages job applicants or employees of one sex without objective justification.
  • Subject a job applicant or employee to harassment related to sex, sexual harassment, or less favourable treatment because they reject or submit to harassment.
  • Victimise a job applicant or employee because they have made or intend to make a sex discrimination compliant under the act, or because they have taken action or intend to take action in connection with the act.

Flexible working – Ms Thompson’s case

In a recent employment tribunal case, it was found that Ms Thompson, a sales manager at a small firm of estate agents in Marylebone, London, had been indirectly discriminated against as regards to her employer’s response to her flexible working request.

Facts: Ms Thompson started working for the firm on 24 October 2016 with a flat rate salary of £120,000. In 2017 this was changed to £60,000 + 12% of sales commission + a bonus if she achieved a sales target. It was noted that the director, Paul Sellar, said “down to her, the office is doing well”.

In the spring of 2018 it became known that Ms Thompson was pregnant. On 1 June Mr Sellar took staff to a private members club for the evening so the staff could celebrate the pregnancy. According to Ms Thompson, Paul Sellar commented to a colleague’s partner: “I thought, for fuck’s sake, why is she pregnant when we are doing so well? I was warned about employing a married woman of her age”. The tribunal noted that this was a sentiment shared by many employers on learning a valued employee will be leaving work for 6 to 12 months and it could not, therefore, be held against Mr Sellar who had otherwise celebrated the pregnancy with the party and other kind acts.

There were a number of incidents cited by Ms Thompson which suggested unfavourable treatment, such as a trip to New York on which she felt excluded and occasions when Mr Sellar seemed angry after lateness due to a celebratory breakfast. On the whole, however, the tribunal found that Mr Sellar’s conduct in such matters was not harassing or discriminatory.

In October 2018 Ms Thompson began her maternity leave. Many other events occurred which were thoroughly discussed by the tribunal. One particularly strange bit of treatment was the response Ms Thompson got after asking whether time off on return would count as annual leave after she was signed off work by her doctor. Overall, the tribunal found that the conduct of Mr Sellar over this period was, although strange at times, reasonable. The exception was the way he dealt with Ms Thompson’s flexible working request.

Ms Thompson’s flexible working request

A formal request for flexible working was made in which Ms Thompson asked to work a four-day week and to finish early, at 5pm, because she proposed to use a nursery near her home in Brixton which closed at 6pm and was an hour’s journey from the office. It was discussed that the current cover for her maternity leave could step in on her day off. She was told there would be pro rata reduction in her salary, annual leave and commission which she understood. She said she could be available by phone during her hours out of the office. On 25th November Ms Thompson received a letter turning down her request for flexible working. It said:

“I have considered your request for a new flexible working pattern carefully. I regret to inform you that, on this occasion, we are unable to accommodate your request for the following business reasons: (1) the burden of additional costs; (2) detrimental effect on ability to meet customer demand; (3) inability to reorganise work among existing staff; (4) inability to recruit additional staff; (5) planned structural change… As you know, building and maintaining client relationships is an essential feature of sales. For continuity purposes, our clients expect consistency in the sales manager they deal with, which is a further reason why it would not be suitable to recruit additional staff to cover the proposed hours.”

See above in this blog to see how this corresponds with the ACAS requirements for dealing with flexible working requests. Ms Thompson appealed the decision and was able to meet with the estate agent’s employment consultant. The appeal was unsuccessful and shortly after, on 23 December 2019, she resigned.

Ruling

In order to find a claim for indirect sex discrimination the tribunal needed to prove that the estate agents had applied to Ms Thompson a ‘provision, criterion or practice’ which is discriminatory in relation to Ms Thompson’s sex. The ‘provision, criterion or practice’ in this case would be the method by which the estate agents dealt with her flexible working request. The tribunal stated:

“It is not as obvious now, as it was a generation ago, that such a requirement [working 9-6 five days a week] places more women with children at a substantial disadvantage than men with children. The claimant argues it is still the case. She relied on a report of a 2018 survey carried out on behalf of Direct Line Insurance, headed: “Battle of the sexes – Mums still bearing the brunt of childcare”, reporting that 64% of mothers compared to 36% of fathers, are the primary carer for their children, despite workplaces increasingly offering flexible working hours, homeworking options, and shared parental leave.”

The tribunal then assessed whether Ms Thompson was at this disadvantage by considering whether the father had asked for flexible working, whether a closer nursery could be used etc. Then the tribunal went through each of the reasons given for refusing the flexible working request and finally stated: “Our conclusion is that the respondent [estate agents] has not shown that refusal of the proposed reduction in hours of work was proportionate to the real need of the business to maintain successful relations with customers. The indirect discrimination claim succeeds.”

Here to help

This case has stimulated a lot of debate around sex discrimination in the workplace. While some newspapers roll their eyes, others have shared similar women experiences which never made it to the courts. As an organisation you need to be alive to these issues. To make employees feel like their requests are being heard and that they’re treated fairly.

If you have any questions or need help dealing with flexible working requests or other employment law issues please contact any one of our employment lawyers Helen Monson or Imogen Finnegan or call us on 0203 637 6374.