Refused flexible working request made for “childcare needs” can amount to indirect sex discrimination
In May 2021, an Employment Tribunal published its judgment in the case of Thompson v Manors finding that the employer’s refusal of the employee’s flexible working request to accommodate her childcare needs amounted to indirect sex discrimination. This case has now caught the attention of the media as the Tribunal recently announced its decision to order the employer to pay just shy of £185,000 to Ms Thompson in compensation for its discriminatory refusal of her request.
During the coronavirus pandemic, many employees have worked from home and employers may see a rise in flexible working requests as they seek to increase attendance at the office. Whilst Thompson v Manors is a first instance decision (and therefore not binding on other Tribunals) it is a reminder to employers to act reasonably and proportionately when considering flexible working requests. A “one size fits all” approach will be risky and each request should be looked at on its individual facts.
Thompson v Manors – facts
Ms Thompson was a sales manager at Manors, an estate agent in London. The working hours for sales managers at Manors were from 9am to 6pm Monday to Friday.
Ms Thompson returned from maternity leave in October 2019 and made a statutory flexible working request to work four days a week instead of five and finish at 5pm instead of 6pm so that she could pick up her child from nursery (the nursery was an hour away from her workplace and closed at 6pm). Her request was refused for various reasons including recruiting additional staff to cover Ms Thompson and clients’ expectation of consistency in the sales manager they deal with.
The Tribunal accepted that it is still the case that mothers are more likely than fathers to carry the primary responsibility for children. When considering Ms Thompson’s circumstances, the Tribunal found that Ms Thompson had been put at a disadvantage in comparison to her male colleagues by Manors’ requirement for sales managers to work full time (9am to 6pm Monday to Friday). The Tribunal found that Manors had not shown that the refusal of the statutory flexible working request was proportionate to the real need of the business to maintain relations with customers and Ms Thompson’s indirect sex discrimination claim succeeded.
Flexible working requests
Some requests may be caught by the statutory flexible working request regime. If so, employers must deal with such requests in a certain way as required by law. Employers must therefore be able to recognise a statutory flexible working request.
Who can make a statutory flexible working request? Employees with at least 26 weeks’ service gain the right to make a statutory flexible working request. Requests must be made in writing and contain certain information to qualify as a statutory request. Eligible employees may only make one statutory flexible working request every 12 months.
What can they request? Eligible employees may request changes to how many hours they work, when they work those hours and whether they work at home or at their employer’s place of business.
Can employers refuse a statutory flexible working request? Yes. The statutory right is to make a request for flexible working and does not mean that employers must accept the request. However, statutory requests must be handled reasonably, within a certain time period and the reason for the refusal must fall within the list of legitimate reasons set out by statute.
Employers must be mindful of claims that may stem from the refusal of a statutory flexible working request, such as discrimination claims and there is a particular risk of such claims where the request relates to childcare arrangements or an employee’s disability. The compensation in successful discrimination claims is uncapped and this case shows that employers who are found to have discriminated against an employee can face hefty compensation payments. Employees may also bring a specific standalone claim for the refusal of a statutory flexible working request or a failure to deal with it properly.
Employers should bear in mind that it may be more difficult to refuse a statutory flexible working request relating to homeworking where the employee has worked from home successfully during the pandemic with no adverse impact on, for example, their ability to meet customer demands, client expectations or the quality of their work; such requests will need extremely careful consideration.
For further information or to discuss this case, please contact Emma Hamnett.