Although the right to make a request for flexible working has been available to parents of young children since 2003, many sectors have remained resistant to the idea of enabling staff to depart from traditional working patterns. The impact of the statutory right is restricted – it amounts to simply being able to make a request and have it dealt with in a formal process, but there is no right to insist on actually changing a working pattern. For their part, employers have always been entitled to reject the request, as long as they can cite one of a number of prescribed business reasons for doing so, such as detrimental impact on customer service, or inability to reorganise work amongst existing staff. In some instances those business reasons may not have withstood significant scrutiny, with managers simply unwilling to countenance doing things differently.
Employees seeking redress against decisions to refuse their requests for shorter working hours, or a different working pattern, have faced significant challenges. The pandemic may have changed this: arguments that employees cannot work from home, or that the work cannot be organised in a different way, have been overturned as many businesses did manage to make very significant changes to operations, whether reorganising shifts, or providing employees with the means of working from home for the first time.
Two recent cases have focused on the legal avenues available for parents struggling to balance the demands of work and family. In the first, Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal (EAT) considered a claim of indirect sex discrimination from a nurse. Mrs Dobson had three children, two of whom had disabilities. She had initially been successful in a flexible working request, which enabled her to work shifts only when her mother-in-law could provide childcare. A change in policy led the Trust to review all flexible working arrangements and it advised Mrs Dobson that she would be required to work occasional weekends. Following her refusal to agree, the Trust enforced the change by dismissing her and offering to re-employ her on the new terms, which included the weekend working requirement. Mrs Dobson refused the new terms and lodged a claim for unfair dismissal and indirect discrimination.
Although she was unsuccessful at employment tribunal level, she appealed to the EAT, which found that the tribunal had failed to consider the “childcare disparity”. In order to succeed with a claim for indirect discrimination a Claimant needs to show that a “provision, criterion or practice” (PCP) of the employer puts those with a particular protected characteristic at a disadvantage. The EAT found that the requirement to work at weekends amounted to a PCP which put women at a disadvantage. Whilst the requirement appears to apply equally to all staff, the fact that women are more likely to be the principal carers of young children means that the requirement to work weekends had a disproportionate impact on women.
In a significant comment about the facts of the case, the judge (who is the President of the EAT) stated that assumptions made regarding the childcare disparity were still supported by evidence and stressed that the childcare disparity should be taken into account when deciding such cases. Although reasonable justifications of PCPs can provide a defence to an indirect discrimination claim, an employer who cannot demonstrate that it is a proportionate means of achieving a legitimate aim, may not be able to defeat a claim. Such an example could be imposing a particular shift pattern which has a disproportional impact on working mothers.
Another indirect discrimination case very recently reported in the media has also featured a denied request for flexible working. Alice Thompson was a sales manager for an estate agent. She was successful and well-regarded by her employer. The employment relationship began to sour when she became pregnant and, following maternity leave, her request to move to a four-day week, and to finish at 5pm, instead of 6pm, was denied. She requested an earlier finish to be able to collect her daughter from nursery, but her request was denied. The tribunal identified that the estate agency had a PCP of requiring the sales staff to work full time hours of 9am to 6pm, Monday to Friday, and found that the childcare disparity put Mrs Thompson at a disadvantage. When considering whether the employer could objectively justify the refusal, the tribunal scrutinised the employer’s ‘business reasons’ very carefully and did not accept its arguments about inability to reorganise work among existing staff, nor about the difficulty of allocating commission between part-timers. Having considered each of them in detail, the tribunal was not convinced by the employer’s business reasons and found that they did not justify refusal of the request.
Mrs Thompson went on to win her claims for indirect sex discrimination and unfair dismissal, with a headline-grabbing award in excess of £180,000.
With significant discussion opening up about whether hybrid working is here to stay, a spotlight will inevitably fall on employers who may remain less than enthusiastic about agreeing flexible working requests, particularly those from working mothers. The President of the EAT himself has highlighted the need for awareness of the childcare disparity when considering requests. A blanket refusal of requests for shorter hours, on the basis of business reasons such as ‘detrimental effect on ability to meet customer demand’ are likely to be much more closely scrutinised in future. HR professionals and and managers would be well-advised to think very carefully about whether a requested adjustment to working arrangements will really be too difficult to accommodate.
In the fullness of time, a reluctance to support a variety of flexible and hybrid working arrangements may well result in loss of valuable staff, as well as damaging an employer’s ‘brand’ and its appeal to prospective employees who want to achieve a different work/life balance. It’s worth remembering that the right to request flexible working broadened in 2014 and became available to any employee, regardless of their reasons for wanting a different work pattern, as long as they had at least 26 weeks’ service. Employers who do not wish to offer anything other than traditional patterns will need to ensure that their business reasons withstand the scrutiny of staff who may now have a taste for delivering their services in a different way.