Avoiding discrimination in flexible working requests

The right to request flexible working is currently available to employees with at least 26 weeks’ service and is set to be extended further under new Government reforms. Ahead of the changes, employers are reminded to carefully consider each flexible working request before making a decision, as highlighted in a recent sex discrimination case.

Glover v Lacoste

The Claimant (“C”) made a flexible working request in November 2020 to move from her five day per week working pattern to three days per week, following her return from maternity leave.

Her employer rejected this request both initially and on appeal, and instead offered a four days per week working pattern, which would have required C to work on any day of the week (the “Compromise Pattern”). C could not work the Compromise Pattern due to childcare commitments, and asked for her original request to be considered, failing which she would treat herself as constructively dismissed.

C’s employer agreed to her original request in April 2021. As C had been furloughed, she returned to work on her requested three days per week pattern. C was not required to work the Compromise Pattern at any stage.

C then brought a claim for indirect sex discrimination against her employer, on the basis that the fully flexible requirement of the Compromise Pattern was a policy, criterion, or practice (“PCP”) that put women at a disadvantage compared to men (due to women tending to be the primary caregiver), and that she personally had been put at a disadvantage because of it.

Her claim was initially unsuccessful. As she had not actually worked the Compromise Pattern, the tribunal found that the PCP had not been “applied” to her and therefore she had not suffered a disadvantage. On appeal to the EAT, however, this was overturned. The EAT found that the PCP had been applied to C when her employer made its final determination of her flexible working request, despite C not working the Compromise Pattern and her employer changing their mind on her request.

The key point in this case is that when an employer responds to a flexible working request, its decision is the point at which any discriminatory PCP will be deemed to have been applied to the employee, regardless of whether this is later overturned on appeal or whether the PCP is applied in practice.

Employers should therefore ensure that they carefully consider the impact of refusing an employee’s flexible working request, as well as the potential impact of any alternative working pattern they suggest in response. It may be useful to implement trial periods following a request, to establish whether such pattern is workable in practice.

Changes to flexible working requests

The Government has recently announced reforms to this area, with the Employment Relations (Flexible Working) Bill currently making its way through the House of Lords. This Bill will make the following changes when it is formally enacted:

• The 26-week qualifying period is set to be scrapped, with flexible working requests to become a day-one right.
• Employers will be required to consult with their employees on available options before rejecting a flexible working request.
• Employers will have a shorter period of time in which to respond, decreasing from three months to two months.
• Employees will have the right to make two flexible working requests in a 12-month period, rather than one.
• Employees will no longer be required to set out how the effects of their proposed flexible can be dealt with by their employer.

The Bill is expected to pass later this year, and is therefore likely to come into force by early 2024.

Employers should ensure they act carefully and reasonably when dealing with flexible working requests and if in doubt please contact our discrimination lawyers who would be happy to support you.