Amongst the discussions around hybrid working, employers should not lose sight of their legal obligation to give full consideration to a formal flexible working request. An Employment Tribunal recently ruled in favour of an employee returning from maternity leave who was awarded £184,961 for indirect discrimination when her application for flexible working was denied (Thompson v Scancrown Ltd, trading as Manors).
Ms Thompson had asked to reduce her working days from five to four and leave at 5pm rather than 6pm in order to collect her child from nursery on time. When the request was denied, she resigned but struggled to find work during the lockdown. She subsequently brought an employment tribunal claim which included a claim for indirect sex discrimination. The tribunal upheld the claim and made an award of £184,961, mainly for loss of earnings but also included £13,500 for injury to feelings.
As employees start to return to the office, we are seeing changes in attitudes and expectations of working practices. Many employees have become accustomed to working from home and are re-evaluating their previous working habits. Employers in turn are looking to ease their employees’ transition to the office by offering hybrid working practices on a temporary basis. However, they should not forget that employees with at least 26 weeks’ continuous employment can make a statutory request for flexible working and employers must deal with the request in a reasonable manner, notifying the employee of the outcome (including any appeal) within three-months. If an employer wishes to reject a statutory request, it can only do so for one of the permitted grounds. It is not sufficient to just list the grounds; as an objective rationale to support the decision should be provided.
While there has been a shift in societal attitudes, it is still the case that women are more likely than men to carry the responsibility for caring for others, which increases the likelihood that they will request flexible working arrangements. Thompson V Scancrown Ltd reinforces the needs for employers to be mindful that rejecting a statutory request may trigger a claim for indirect discrimination.