Flexible working and sex discrimination

The desire by many to work from home is reinforced by the results of a new study from Acas, which reveals that half of employers expect more flexible working requires from staff after the pandemic is over.

As a result of the increase in demand for flexibility in how and where people work, we are starting to see employment tribunal cases coming through relating to flexible work requests. A recent case drew attention to the issue of indirect sex discrimination, after an employee’s request to adjust her working hours due to childcare reasons was rejected.

In the case of Mrs A Thompson v Scancrown Ltd T/a Manors the employment tribunal awarded £185,000 to Mrs Thompson, a former sales manager at a small independent estate agent in Central London for her employer’s failure to properly consider a flexible working request. The award included loss of earnings, loss of pension contributions, injury to feelings and interest. Mrs Thompson had asked to work shorter hours and suggested a four-day week. She also asked to leave work at 5pm, rather than 6pm, so that she could pick her daughter up from nursery.

The tribunal found that Mrs Thompson had suffered indirect sex discrimination, as her employer’s refusal to consider the request was a disadvantage based on her gender.

Flexible working and employee rights

All employees who have been with an organisation for 26 weeks or more have the right to make a flexible work request. This could involve asking for shorter hours, a different start or finish time, a job share or working their hours over fewer days. They can only make one request in any 12-month period.

Flexible working and employer obligations

An employer is required to deal with a flexible working request in a reasonable manner and make a decision within a maximum of three months. They can only refuse a request for one (or more) of the eight reasons set out in the Employment Rights Act 1996. These include the following:

• The burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to reorganise 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

If an employer does not want to approve the request, a meeting should be held to discuss the changes the employee is looking for.

Potential sex discrimination implications

Employers must not only be mindful of the statutory position but also potential discrimination implications. It has historically been accepted that women have the primary responsibility for childcare. Therefore, refusing a request can open employers up to indirect sex discrimination claims.

Indirect sex discrimination can happen when there are rules or arrangements which are applied to a group of employees, but where in practice they have a disproportionate impact on a particular protected group.

When a request has been made because of childcare responsibilities, an employer will need to carefully consider the reason for refusal and whether it might be able to offer an alternative in the event the requested working pattern cannot be accommodated.

Further support

If you would like to know more about flexible working requests and the formalities of dealing with them, book a free 30-minute consultation with an employment specialist to discuss this further.

This content is correct at time of publication