Background
Ms Thompson worked as a Sales Manager at Manors Estate agents in Central London, joining in October 2016. She was highly regarded, successful and earned a significant salary plus commission. When Ms Thompson announced her pregnancy in 2018 however, the relationship with Company Director, Mr Sellar, began to deteriorate.
On her return to work after maternity leave in 2019, Ms Thompson made a flexible working request to her employer for shorter working hours. Her request was to work a four-day week and leave work at 5pm rather than the business’ standard end of day time of 6pm to enable her to pick up her daughter from nursery.
Manors Estate Agency denied her flexible working request on the basis they could “not afford for her to work part time”. Ms Thompson claimed her request was not fairly considered and that she was willing for her employer to make an alternative counter-offer. Ms Thompson raised a grievance complaining amongst other things about her treatment when pregnant and the rejection of her request to work flexibly.
On learning that her grievance had been rejected as well as her flexible working request, Ms Thompson resigned from her role as she could not balance her work with her family commitments.
She brought claims in the Employment Tribunal for pregnancy and maternity discrimination, harassment related to sex, indirect sex discrimination in respect of her flexible working request, unfair dismissal and unlawful deduction of commission payments from wages. All claims with the exception of her indirect sex discrimination in relation to her flexible working request failed.
What is indirect discrimination?
Indirect discrimination is when there is a policy, practice or procedure in place that applies to everyone but inadvertently puts certain employees at a particular disadvantage because of a protected characteristic. The tribunal found that her employer failed to properly consider Ms Thompson’s flexible working request and that a denial of such requests had the effect of being indirectly discriminatory to women who historically have to juggle childcare responsibilities and work. As a result, Ms Thompson was awarded almost £185,000 for loss of earnings, loss of pension contributions, injury to feelings and interest.
The Equality Act 2010 states that you cannot discriminate against the following protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage or civil partnership (in employment only)
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
Flexible working requests | Top Tips for employers:
- Ensure your policies are up-to-date
The pandemic has seen many working practices change and it is imperative your policies are kept up-to-date and relevant. We provide fixed fee packages in relation to contracts, policies and procedures and HR procedures. Click here for more information.
- Have an open mind
Throughout the process, it is imperative to remain objective and considerate to ensure good working relationships with employees. All requests should be considered carefully and the benefits weighed up for the employee and the company against any potential adverse impact.Any decision should not be discriminatory.
- Compromise and alternatives
In some situations, it may not be possible to accommodate a specific request. It is essential that all options are considered that can accommodate the employee request whilst allaying any legitimate business concerns.Eg. the employer may adopt the requested changes on an initial trial period rather than rejecting the request to assess the impact of the changes in reality. Tribunals will favour that you have attempted to be reasonable by offering alternative options. If it is not possible to make any changes, ensure you have one of the legally defined reasons for rejecting the request and the relevant evidence to support this.
For more information on the current laws relating to flexible working requests, please click here.
If you have any queries regarding employment tribunals or flexible working requests, please contact Lisa Aitken on 01926 491181 or email: LisaA@moore-tibbits.co.uk.