Is refusing a mother’s request for flexible working in order to facilitate childcare discriminatory?

Yes, held the Employment Tribunal in the case of Thompson v Scancrown Ltd t/a Manors

Members should already be aware of the statutory provisions on flexible working. Since 2014 any employee with the requisite period of continuous employment will now be able to request flexible working, regardless of their reasons for wanting it.

Under the statutory right, employees can apply to vary the hours they work, the times they work or their place of work (between their home and their employer’s place of business). However as before, this does not provide an automatic right for an employee to work flexibly – it is only a right to request. Employers have the right to turn down an employee’s application provided they do so for one or more of eight permitted business reasons, i.e.

  • The burden of additional costs.
  • The detrimental effect it would have on ability to meet customer demand.
  • Inability to reorganise work amongst existing staff.
  • Inability to recruit additional staff.
  • The detrimental impact it would have on quality.
  • The detrimental impact it would have on performance.
  • Insufficiency of work available during the period when the employee proposes to work.
  • Planned structural changes.

However, a recent Tribunal case highlights the importance of also considering flexible working requests that could give rise to other types of claim, e.g. a claim for indirect sex discrimination where the request is made by a mother returning from maternity leave, or a disability discrimination claim where the request is made by an employee as a reasonable adjustment for their disability.

This is exactly what happened in the case of Thompson v Scancrown Ltd t/a Manors where it was found that the refusal of an employee’s flexible working request to modify her working hours to accommodate her childcare responsibilities was indirect sex discrimination.

Background

Ms Thompson was employed as a sales manager by Scancrown Ltd. Scancrown was a small independent estate agency whose normal office hours were 9 am to 6 pm. On her return from maternity, Ms Thompson submitted a flexible working request to finish at 5pm instead of 6pm so that she could pick her child up from nursery in time. This request was refused. As a result of the refusal Ms Thompson resigned and filed several claims, including indirect sex discrimination.

The tribunal upheld the indirect discrimination claim and found that the Respondent’s failure to consider this flexible working request put the Claimant at a disadvantage as a result, as this meant that she was unable to collect her child from nursery. The tribunal acknowledged the Respondent’s objective justifications for the provision. It was noted that although they recognised the Respondent’s business concerns, the decision had a disproportionate effect on Ms Thompson and so the reasons provided did not outweigh the discriminatory impact on the Claimant.

In Conclusion

With employees and employers getting to grips with a post pandemic world, we are seeing an increase in flexible working requests as employees, who have previously worked from home, seek to achieve a better work life balance.

Whilst there is currently no legal right to work from home, women who are seeking flexible working for childcare reasons will have the added layer of protection from discrimination laws and this will need to be considered. When considering such requests employers should consider:

  • If the request has been refused for a business reason, are there any alternative working arrangement that can be suggested?
  • If there are concerns, is aa trial period appropriate in order to assess the impact of modified working arrangements on their workplace?

Keeping clear records of their reasoning when making decisions and making sure that due consideration is given to the effect of any refusal on the employee.

  • Where possible, ensuring they remain consistent in how such requests are treated.

As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

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