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.