If you want to read in more detail how the Tribunal calculated Mrs Thompson’s award at £184,961.32 please follow the link to the remedy judgment here. Mrs Thompson award of £184,961.32 was made up of a loss of earnings, pension contributions, injury to feelings and interest. Please note that Mrs Thompson’s annual salary was approx. £120,000 per annum.
It is worth noting that Mrs Thompson claims for:
discrimination because of pregnancy or maternity leave;
harassment related to pregnancy and maternity;
unauthorised deductions (referral fees); and
Flexible Working Request (FWR) and indirect sex discrimination
The only claim of Mrs Thompson’s that was successful was that of indirect sex discrimination. The indirect sex discrimination claim stemmed from Mrs Thompson making a FWR to:
shorten her hours from a 6pm finish to a 5pm finish to allow her to collect her daughter from nursery; and
work a four-day week.
Mrs Thompson’s FWR was rejected by the central London estate agent Manors with the Tribunal identifying that director Mr Sellar could not accommodate the request due to the ‘importance of consistency and continuity in client relationships for successful sales’.
The Tribunal judged that the requirement for the Mrs Thompson to work full-time (9am-6pm, Monday to Friday) with her child’s nursery closing at 6pm, put her at a disadvantage.
Mrs Thompson relied on a report of a 2018 survey carried out on behalf of Direct Line Insurance, headed: “Battle of the sexes – Mums still bearing the brunt of childcare”, which reported that 64% of mothers, compared to 36% of fathers, are the primary carer for their children.
The Tribunal identified that, although there has been a positive shift in parental responsibilities, it is still apparent that mothers carry primary responsibility for childcare over fathers. With the Tribunal describing the difference as ‘not negligible’.
The legal position behind an employee making a FWR
Employees with 26 weeks’ continuous service have a statutory right to make one formal application for flexible working each year and do not require a specific reason to make such a request.
Typically, employees’ flexible requests include:
changes to the number of hours they are required to work;
the times they are required to be at their usual place of work (i.e. apply to work days or parts of the day from home).
The application must be in writing, dated, and must:
state that the application is being made under their statutory right to request flexible working;
specify the proposed flexible working arrangement and the date on which the employee would like it to commence;
explain what effect, if any, the employee thinks the proposed change would have on the employer and how, in their opinion, it can be dealt with; and
confirm whether a previous application has been made to that employer and, if so, when.
Employers must deal with a FWR in a ‘reasonable manner’ and give reasonable consideration to the requested flexible working practices. Requests should generally be dealt with within three months. Employers are only permitted to reject a request on specified business grounds, namely:
burden of additional costs;
inability to reorganise work among existing staff;
inability to recruit additional staff;
detrimental impact on quality;
detrimental impact on performance;
detrimental effect on ability to meet customer demand;
insufficiency of work during the periods the employee proposes to work; or
planned structural changes.
Reasons why employers may see an increase in FWRs after lockdown ends
While some employers already fully embrace agile working, the only ‘flexible’ option to date has been the traditional part-time working model.
The government guidance during periods of lockdown throughout the pandemic has been that those who can work from home must do so. This has forced previously reluctant employers to facilitate homeworking as they have been left with no viable alternative other than to furlough their staff.
Employers have had to adapt to new methods of working such as using Microsoft Teams, Zoom, Skype or similar. They have had to invest in remote working technology such as laptops and mobile phones for staff.
Resultantly many employees will have seen immediate benefits from not having to commute to work and be present at their usual place of work typically 9am-5pm, Monday through Friday and therefore may think carefully about making a statutory FWR to facilitate childcare arrangements.
Will Mrs Thompson’s case now make it harder for employers to reject FWRs?
Employers can only reject a FWR on specified business grounds as set out above. Many businesses are likely to find it increasingly difficult to rely on such business grounds to justify refusing a FWR.
Employees will rightly question now that the technology is in place why they cannot continue to work flexibly around childcare commitments as the additional burdensome costs of investing in homeworking equipment have already been incurred.
Further employers will face an uphill struggle to successfully argue that working from home will have a detrimental impact on quality or performance of work undertaken.
If a FWR is refused but an employer’s decision transpires to be discriminatory, this can create a situation where the employers’ outcome could amount to a fundamental breach of the employee’s contract. It would then be for an employee to resign in response to that fundamental breach and claim constructive unfair dismissal. In practice many employees are reluctant to do this as they will be resigning without notice (in direct response to the fundamental breach) and cutting off their income stream. We would strongly advise that an employee in this position seeks specialist legal advice before resigning but they should not delay in seeking that advice.
Please note – this guidance is not intended to be taken as legal advice – for individual situations you will need to take specific legal advice.
If you would like to discuss your own Flexible Working Rights, please contact Andy Boyde by email or on 0112 322 9222.