Flexible working requests and indirect sex discrimination
A female employee can claim indirect discrimination where an employer applies a provision, criterion or practice (PCP) which puts or would put women at a disadvantage compared to men (group disadvantage); and the PCP puts or would put the employee at that disadvantage. The employer has a defence if it can show that the PCP is a proportionate means of achieving a legitimate aim.
Can a refusal of a flexible working request and a decision to offer an alternative, fully flexible working pattern be indirect sex discrimination even if the new work pattern was never applied in practice?
Ms G worked full time. She went on maternity leave and made a flexible working request to work three days a week. Following a meeting, Ms G’s request was rejected by the employer and she was given the right of appeal. After the end of her maternity leave, Ms G took annual leave and was then placed on furlough. She appealed the decision to reject her request for flexible working.
Ms G’s appeal was partly upheld, and she was offered part-time work four days a week, to be worked flexibly on any day of the week including weekends. This was offered on a six-month trial period. Ms G considered that the requirement to be fully flexible was impossible to reconcile with childcare arrangements.
Ms G instructed solicitors who wrote to the employer asking them to reconsider their decision, failing which she might have no option but to resign and claim constructive dismissal. The employer subsequently granted her original flexible working request, reversing its previous decision, and she returned to work on the basis of her original request.
Indirect sex discrimination?
Ms G issued a claim in the Employment Tribunal, alleging indirect sex discrimination. She argued that the PCP was a requirement for fully flexible working. The Tribunal noted that the decision about the flexible working request was reversed before Ms G was required to start work on the flexible terms. The Tribunal concluded that as she was never required to work flexibly, a PCP requiring fully flexible working had not been applied to Ms G and she had not suffered disadvantage. Ms G’s claim therefore failed.
Ms G appealed to the Employment Appeal Tribunal (EAT). The issue for the EAT to consider was whether the application of the PCP applies when the employee’s application for flexible working is determined; or only when the employee starts work under the new arrangement.
The EAT found that the Tribunal had made an error of law in its decision. It noted that there was ‘only one possible answer’ to the question of whether the PCP was applied. In this case, the PCP was applied at the stage of the determination of the appeal against the refusal of the flexible working request.
The EAT sent the matter back to the Employment Tribunal to determine whether there was group disadvantage; and whether Ms G was subject to a disadvantage by the application of the flexible working PCP. It noted, however, that it is ‘hard to see on what basis it could be held that there was no disadvantage’ when the appeal was determined against Ms G and she felt that she had to consider resigning.
This judgment clarifies that once a final decision on the flexible working application has been reached by the employer, the PCP is applied even if the employee has not returned to work and attempted to work under the new arrangement.
The Government has announced changes to the current rules on an employee’s right to request flexible working. Further details are set out in our separate post here.
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28 February 2023