Rejection of flexible working request cost employer £184,000

The pandemic has seen employees re-evaluate their working habits and some may try to change their working terms and conditions e.g., working one day less a week, changing their hours and/or place of work. Employees will need to seek approval from their employers.

Although not a requirement employers will generally request that the employee submits a flexible working request so that the employer can properly consider the request and impact it will have on the workforce. Employees who have 26 weeks of service have the right to submit a flexible working request.

Employers are required to consider the request reasonably and provide the outcome to the employee within 3 months, this can be delayed by mutual agreement. The employer can only refuse from one or more of the following grounds: –

• the burden of additional costs, 
• detrimental effect on ability to meet customer demand, 
• inability to re-organise work among existing staff, 
• inability to recruit additional staff, 
• detrimental impact on quality, 
• detrimental impact on performance, 
• insufficiency of work during the periods the employee proposes to work, 
• planned structural changes, and 
• such other grounds as the Secretary of State may specify by regulations. 

The flexible working request does not offer the right to a trial period. Therefore, should the flexible working request be agreed then the contractual variations will have been made and will carry on indefinitely (unless agreed otherwise).?

Should the flexible working request be rejected then clear written reasons should be provided to the employee as to why one or more of the above grounds applies. The employer’s decision could be challenged if the grounds for refusing are inadequate, or the employer has not acted reasonably.

Further, employers may be liable to indirect discrimination if the ground for refusal is discriminatory. There could also be a failure to make reasonable adjustments claim if the proposed changes are requested to accommodate a disability.

Flexible working request interaction with indirect discrimination  

Indirect discrimination is where the employer has a practice, criteria, or provision (PCP) that, places people with a protected characteristic at a disadvantage. Employers will have a defence against indirect discrimination if they can show that they had a legitimate reason for their PCP. This is known as a ‘legitimate aim.?

Where a flexible working request is rejected, the employer needs to be conscious of the fact that their refusal will become a PCP. If the PCP places persons with a protected characteristic e.g., sex at a disadvantage and there is no legitimate aim then they will be discriminating against that person.

Damages for indirect discrimination are uncapped and can be high. Indeed, the employer in Thompson v Scancrown Ltd, trading as Manors were ordered to pay the Claimant £184,000 on the basis that the refusal of the employee’s flexible working request was indirect sex discrimination.

Thompson v Scancrown Ltd, trading as Manors 

In Thompson, the Claimant worked as a sales manager of a boutique real estate agency. Upon her return to work from maternity leave the Claimant submitted a flexible working request and requested to finish work one hour earlier each day, this would allow her to pick up her daughter from nursery before it shut.

The Claimant also requested to reduce her working days from 5 to four days a week. In the flexible working request, the Claimant made suggestions on who could cover her work on her proposed day off and that she would be available by telephone in the hour she proposed to reduce.

The employer refused the request and cited 5 of the grounds above with no actual explanation as to how they apply, the employer added a short paragraph at the end of the letter saying it was important for the clients to have continuity on who their clients deal with and that is another reason they couldn’t hire a replacement for her.?

The Claimant brought an indirect sex discrimination claimant on the failure to accept the flexible working request. The tribunal held that the PCP was the requirement to work full time, 9 – 6, Monday to Friday. They also held that mothers are more likely to carry primary responsibility than fathers and that the requirement to work full time until 6 pm, Monday to Friday put the Claimant at a disadvantage.

The employer did not put a legitimate aim forward, so they used the grounds for rejecting the flexible working request i.e., consistency and continuity in client relationships. The tribunal held that the response was not proportionate to their aim. The tribunal awarded the Claimant a total of £184,961.32, £13,500 for injury to feelings and the rest was made up of loss of earnings, pension contributions and interest.

Rejecting flexible working requests can be costly. Employers need to be reasonable and when in doubt to reach flexible working solicitors.