UK: Workplace culture: Flexible working request during maternity leave
Ms Glover, an assistant store manager at Lacoste UK Ltd, worked full-time, five days a week, but flexibly as set out in a rota. During her maternity leave, she made a flexible working request asking to work three days a week on her return. The request was turned down and so she appealed.
On appeal she was offered four-day week, to be worked flexibly on any day of the week including weekends on a trial basis. As this outcome would cause her childcare issues, Ms Glover asked Lacoste to reconsider her request, failing which she may have to resign and claim constructive dismissal. Lacoste then agreed to her original flexible working request. Ms Glover never actually had to work the working pattern offered at the appeal hearing.
Nevertheless, Ms Glover brought an employment tribunal claim for indirect sex discrimination. She claimed that the requirement to work fully flexibly was a provision, criterion, or practice (PCP) that had been applied to her and put her (and other women) at a disadvantage due to childcare obligations and could not be justified.
The tribunal decided that no PCP had been applied to Ms Glover and she had not suffered a disadvantage as she had not actually been required to work flexibly. The tribunal did accept that, had the PCP been applied, it would put women at a disadvantage due to the difficulties it would cause with childcare. Ms Glover appealed to the Employment Appeal Tribunal (“EAT”).
The EAT decided in Ms Glover’s favour. It said that the requirement to work on a fully flexible basis – the PCP – had been applied to Ms Glover when the outcome of her appeal was decided. It sent the case back to a fresh employment tribunal to reconsider the merits of her case with this in mind. However, the EAT said that it was hard to see on what basis it could be decided that Ms Glover suffered no disadvantage when her appeal was decided against her, and she felt she had to consider resigning.
Key Action Points for Human Resources and In-house Counsel
This case demonstrates the importance of considering flexible requests carefully from the start and keeping in mind the risk of discrimination claims – not just sex discrimination but also on other grounds such as age, disability or religion/belief.
Even if the flexible working request is ultimately granted on appeal, an employee who has initially had their request turned down could still bring a successful discrimination claim and be awarded compensation, if the initial decision cannot be objectively justified (although it is unusual in our experience for an employee to bring a discrimination claim when their flexible working request has ultimately been granted.) Compensation is most likely to be restricted to an injury to feelings award.
The UK government is supporting proposed reforms to the making of flexible working requests. See the Employment Relations (Flexible Working) Bill and the UK government’s response to the consultation, Making flexible working the default. If these proposals become law, we are likely to see more flexible working requests being made.
