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Case Update: Indirect Discrimination & Flexible Working

In the past few days, we’ve seen quite a lot of coverage of the case of Thompson v Scancrown Ltd (Trading as Manors). The headline we’ve seen most is: “Estate agent on £120k-a-year who was not allowed to work a four-day week wins £184,000 sex discrimination payout.”

But what was the case actually about? And what does it mean for employers?

Case Summary

The claimant was employed by the respondent, Manor’s estate agents, as a sales manager. She was absent on maternity leave from October 2018 to October 2019. On her return to work, she made a flexible working request for a four-day week and shorter hours so she could collect her child from the Nursery which closed at 6 pm. This was rejected by the respondent, at which point, the claimant resigned.

The respondent had denied her request for flexible working hours for many reasons including ‘additional costs’, the ‘detrimental effect on the ability to meet customer demand’ and the ‘inability to reorganize work among existing staff’. She believed that her request for flexible hours has not been considered properly.

Her claims were for pregnancy and maternity discrimination, harassment related to sex, indirect sex discrimination in respect of the flexible working request, unfair dismissal, and unlawful deduction of wages. Whilst her other claims were rejected, her claim for indirect discrimination succeeded.

It was found that the requirement for the sales manager to work full-time, 9-6, Monday to Friday – when nurseries ordinarily shut at 6 pm – put her at a disadvantage. This requirement placed women with children at a substantial disadvantage. The claimant relied on a report of a 2018 survey, reporting that 64% of mothers, compared to 36% of fathers, are the primary carers for their children.

The Tribunal accepted that, notwithstanding an encouraging shift in societal attitudes, it is still the case that mothers are more likely to carry primary responsibility than fathers. The claimant was awarded £184,961.32 for a loss of earnings, pension contributions, injury to feelings and interest.

What does the decision in this case mean?

This effectively provides a clear case example for indirect discrimination claims. In short, this is where a provision, criteria or practice, which in principle applies equally, substantially disadvantages or would disadvantage a person or group because of their sex.

In this case, the claimant could show that the employer’s standard policy was not to accept flexible working requests. Although the claimant was not treated any differently from a man making the same request, it generally puts women at a disadvantage as they are more likely to have childcare obligations that necessitate flexible working hours.

This case, although only a first judgment and is therefore not binding on other courts, shows the strength of the arguments of group disadvantages; in this case, that the average woman still holds more childcare responsibilities than their male counterparts.

What rights do parents have in this area?

Parents have the same rights as other employees in making flexible working request. They need to have been employed for more than 26 weeks to make the statutory request the employer must then review this alongside the business needs and respond promptly with a decision. If this is rejected employers should set out their objective justification for why, within eight statutory reasons.

If a dad asked for flexibility for nursery pick up, would he have the same rights in this case?

He would have the same right to make the request for flexible working, as above. However indirect discrimination, in this case, applies only to women; the claimant was able to evidence a group disadvantage. Namely that, women are more likely to hold the primary caregiving responsibilities, and therefore more likely to be disadvantaged by the PCP rejecting flexible working requests.

This is where men would fall down on this type of claim, as on average women still hold more childcare responsibilities than men so they can establish the group disadvantage needed for this type of claim to succeed.

How can employers avoid claims for sex discrimination in relation to flexible working requests?

We have a separate blog here on how an employer should deal with flexible working requests, but this case has mostly highlighted that an employer must genuinely consider the application and consider what, if any, protected characteristics play into the application made. So, if the application is made due to childcare, then an employer should be put on notice of the potential group disadvantage which women may suffer if such a request is rejected.

For the respondent, this is a costly reminder of the consequences of having a blanket policy not allowing flexible working. For our part, our advice is very simple, in order to have a diverse and inclusive workforce, an employer should be mindful and considerate of flexible working requests and other requests to ensure everyone thrives at work.  

How can we help?

As an owner-run company, we know the pains of having to wear many hats and how time is precious. As qualified employment and HR lawyers, we know the consequences of getting HR decisions wrong. We work with you to let you focus on what you need to be doing in the business with the peace of mind that all letters and decisions are run past a qualified lawyer before you implement them.

When you partner with Thrive for outsourced HR support, we can reduce your stress and free you up to work on the business and to make HR decisions with confidence.  

With people at the core of every successful business, keeping on top of the ever-changing legislation and making the most out of your people can be challenging, but we are here to help.

We can also support your business in the event an employee approaches ACAS or the employment tribunal

Get in touch today to invest in your business and make your HR stress free. Email Jodie.hill@thrivelaw.co.uk

Disclaimer…

Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at enquiries@thrivelaw.co.uk  

 

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