The flexible working request - a changing landscape
Refusing to seriously consider flexibility in the workplace could see employers walking blindly into a successful sex discrimination claim.
According to a recent survey published by the TUC, and the campaigner group ‘Mother Pukka’, half of working Mums don’t get the flexibility they request at work. The survey polled 13,000 employees and working Mums across the public and private sector and the results were published on 15 October 2021. They found that 50% of working Mums reported that their employer had rejected or only partly-accepted their flexible working request.
86% said they’d faced further discrimination and disadvantages at work because they made a flexible working request.
42% thought there was little point in making a flexible working request as it would just be turned down.
42% told the TUC that they would not feel comfortable asking about flexible working in a job interview because they thought they would be discriminated against.
Flexible working: An employee’s current rights
A flexible working request could involve shorter hours, different start and finish times, a job share or completing working hours over fewer days (compressed hours).
Employees with at least 26 weeks’ continuous service currently have the right to make a flexible working request if they haven’t made one during the previous twelve months.
Employers must deal with any flexible working request in a ‘reasonable manner’ and notify the employee of their decision within three months.
The risk of failing to seriously consider a flexible working request: what’s the worst that could happen?
The recent and widely reported tribunal case of Mrs A. Thompson v Scancrown Ltd T/A Manors (Case No: 2205199/2019) illustrates the risk to an employer of indirect sex discrimination claims brought after failing to seriously consider a flexible working request.
Thompson made a flexible working request to change her working hours when she returned from maternity leave. The request put to her employer, a small independent estate agent in central London dealing with very wealthy clients, involved working four days and shorter hours to finish at 17:00 as opposed to 18:00. Thompson said working shorter hours would allow her to pick her daughter up from nursery which closed at 18:00.
Scancrown Ltd rejected the request, and blandly cited five of the accepted eight grounds for refusal. They went on to say, “as you know, building and maintaining client relationships is an essential feature of sales. For continuity purposes, our clients expect consistency”. Thompson cited within the tribunal a 2018 survey entitled “Battle of the sexes – Mums still bearing the brunt of childcare”, which had reported that despite the increasingly availability of flexible working hours, homeworking options, and shared parental leave, 64% of mothers, compared to 36% of fathers, remained the primary carer for their children.
Whilst the tribunal acknowledged Scancrown Ltd’s caution about making changes to their sales team in a time of commercial uncertainty (due to the absence of terms upon which the UK would leave the European Union) it didn’t agree with the reasons provided.
The tribunal concluded that Scancrown Ltd had 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.
Thompson’s claim of indirect discrimination succeeded.
The judge awarded her almost £185,000 for loss of earnings, loss of pension contributions, injury to feelings and interest.
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