Indirect Discrimination Judgement: Think Twice Before Refusing Flexible Working Requests

Now that hybrid working is the new normal, there has been a surge in flexible working requests. A recent Employment Appeal Tribunal (EAT) decision is eye-opening for employers who need to think twice when considering flexible working requests. It was found that even after changing their mind and agreeing to a flexible working request after initially rejecting it, this amounted to indirect discrimination. 

What Happened In Glover v (1) Lacoste UK Ltd (2) Mr R Harmon?

An assistant manager at Lacost, Ms Glover worked a 5-day flexible working pattern which varied depending on the rota. Ms Glover went on maternity leave and whilst off, made a request for flexible working arrangements on her return to work. She wanted to return to work with a 3-day working schedule but her employer refused this request and instead offered her a 4-day flexible working pattern. Ms Glover said that working 4 days would be problematic for making childcare arrangements and therefore not suitable for her needs. 

She then went on to seek legal advice to understand what her options were. Ms Glover’s solicitor sent Lacoste a letter to say that she would resign from her position and claim for constructive dismissal on the basis that her flexible working request was not accepted. 

Lacoste then changed their mind and accepted Ms Glover’s request to work 3 days per week instead of 4. However, Ms Glover proceeded with a claim of indirect sex discrimination anyway. 

The question in this case was whether the flexible working request refusal still amounted to indirect discrimination even though the employer changed their mind. This claim was first rejected by the Employment Tribunal but on appeal, the EAT found that Ms Glover had been subject to the provision criterion or practice (PCP) which means that someone with protected characteristics (sex) had been put at a disadvantage and therefore discriminated against. 

Key Takeaways for Employers

Employment tribunals recognise that women often have greater childcare responsibilities which can affect when they can work. They are therefore less likely to be able to commit to usual working hours compared to men. 

The cases of Dobson v North Cumbria Integrated Care, Follows v Nationwide and Thompson v Scancrown all found that there was indirect discrimination against women due to a failure to accept flexible working requests which ultimately placed women at a disadvantage compared to men. The ruling in Glover v Lacoste places further responsibility on employers to seriously and carefully consider flexible working requests made by women who have childcare commitments. If employers refuse reasonable requests, they could be found to be indirectly discriminating against employees from the outset, regardless of whether they change their minds afterwards. 

Employers should therefore have flexible working policies that clearly outline when requests will and won’t be accepted. Before making any decisions about flexible working arrangements, employers should carefully consider factors including business needs and the individual employee’s circumstances. 

Trial periods could be a good starting point before completely rejecting any requests. However, employers will benefit from gaining legal advice about when they should and shouldn’t refuse requests in order to avoid costly proceedings and large compensation payouts. 

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