Member Article

The shift to flexible working has never been more pronounced than now as we make a steady return to the workplace following the pandemic. National headlines recently highlighted the risk for employers of failing to properly consider requests for flexible working.

The case of Thompson v Scancrown Ltd t/a Manors resulted in the claimant, Mrs Thompson, being awarded just over £180,000 for indirect discrimination following the rejection of her flexible working request. It comes as a timely reminder for employers to think carefully before denying their staff flexibility.

The facts

Mrs Thompson was employed as a sales manager with Manors estate agents. Manors is a small independent estate agent with around 10 employees.

During her pregnancy she felt her relationship with her boss, Mr Sellers, and Manors start to deteriorate. The evidence shows a few poorly handled incidents and some tactless comments on both sides chipping away at the trust between Mr Sellers and Mrs Thompson. These comments led Mrs Thompson to believe she would not be treated kindly as a new mother.

After her maternity leave between October 2018 and October 2019 she returned to work ready to continue her career. Mrs Thompson made a flexible working request to Manors to work four days a week and to work shorter hours with a 5pm finish so she could collect her daughter from a nursery, which closed at 6pm. Manors rejected the request stating that it could not afford for Mrs Thompson to work reduced hours. Ms Thompson resigned because she could not balance longer working hours with the need to pick her daughter up at 6pm.

Claims

Mrs Thompson filed claims for unfair dismissal, unlawful deduction of wages, pregnancy and maternity discrimination, harassment related to sex and indirect sex discrimination in respect of the flexible working request.

Claims of harassment failed as the conduct was found to be less than friendly but could not reasonably amount to harassment. The claims of dismissal failed as it was found that none of Manor’s actions amounted to a repudiatory breach of contract: Mrs Thompson had resigned.

Ms Thompson’s claim for indirect discrimination succeeded.

Why did the Tribunal find in her favour?

Indirect discrimination occurs when there is:

• a seemingly neutral provision, criterion or practice;
• which puts persons with a protected characteristic at a disadvantage compared to another person who does not share the characteristic;
• the claimant also shares this characteristic and suffers this disadvantage; and
• the respondent cannot show it to be a proportionate means of achieving a legitimate aim.

The provision of neutral effect in this case was the requirement that the sales manager work full-time, 9-6, Monday to Friday.

A generally accepted fact with indirect discrimination claims is that childcare still falls predominantly on women as a group in society. The pandemic has highlighted this reality as it became apparent for many households where responsibility lay when requirements of home-schooling children had to be balanced between parents. Mrs Thompson was able to successfully demonstrate that this imbalance of childcare responsibilities persists and that, as such, the requirement to work full time puts woman at a particular disadvantage.

Mrs Thompson demonstrated that she personally suffered this disadvantage.

Manors failed to show that the aim of having sales managers available for the full working week was a proportionate means of achieving a legitimate aim. The Tribunal found that the team could effectively operate when covering the periods Mrs Thompson was not working. The costs of this cover would be simple enough to recover as Mrs Thompson accepted her pay and commission would be reduced pro rata.

The award

A breach of flexible working rules alone only carries maximum compensation of just 8 weeks’ pay, with a week’s pay capped at the statutory minimum, currently £544 per week. The £180,000 award in this case largely comprised loss of earnings (past and future), pension contributions, injury to feelings and interest. The £180,000 was grossed up for income tax payable by Mrs Thompson on receipt and she will receive around £121,745 net after tax.

A reminder: tips and considerations for dealing with flexible working requests:

1. Treat it as a discussion. If you cannot offer what the employee is asking for then consider what you can offer to compromise or as an effective alternative. Offering a trial period may provide a way to see whether the flexibility requested will work in practice.

2. Consider if you really need this person to work those hours:

   1. Can someone else cover this time effectively?

   2. Does your business rely on this person being contactable at that specific time?

   3. Can the team as a whole effectively deal with customers or clients during this time?

   4. Can the work be handled at other hours which the employee is willing to work?

3. Remember pro rata reductions to pay and holiday entitlement when considering the costs of accommodating the request.

4. If you are going to reject the request then provide as much detail, in plain English, as possible. Simply saying the costs will be high is unlikely to be convincing. Ensure the reason for refusal comes within one of the eight business reasons set out in the legislation.

5. Even a small company like Manors were considered capable of accommodating this request. Larger companies will have more capacity to accommodate flexible working arrangements.

6. Consider the risks of losing a valuable employee when thinking about flexible working. Many employees who request flexible working are trying to balance demanding jobs with busy family lives and may go elsewhere if their request (or a variant thereof) is not accommodated.