All employees who have at least 26 weeks' continuous employment have the right to make a request for flexible working. A request can be made for any reason but they are still most commonly made by women seeking flexibility to care for children.
So your employee is on maternity leave and out of the blue you receive a request from that employee to, on her return to work, reduce her hours to three days per week and to finish early on a Tuesday to accommodate her childcare arrangements. In your view, the company cannot possibly grant this request, but what do you do? Do you panic? Given the potential for an indirect sex discrimination claim, are alarm bells ringing?
Two recent decisions from the Employment Tribunal may provide some welcome relief. Whiteman v CPS Interiors Ltd and Ors, and Smith v Gleacher Shacklock LLP both related to a flexible working request (“FWR”) made by an employee in advance of their return from maternity leave.
1. Whiteman v CPS Interiors Ltd
Lucy Whiteman worked for CPS Interiors as a CAD (computer aided design) designer. In advance of her return from maternity leave, she submitted a flexible working request (“FWR”). She had previously worked 9 to 5, Monday to Friday. She requested to reduce her hours to 20 hours per week. In addition, she proposed:
“to carry out all the CAD drawing work... from home to fit with looking after my 2 children, Monday-Sunday. Largely from 6pm every evening and at various other times during the day to fit with my partner Tim’s shifts. I propose to come into the office at convenient times for both CPS management and myself to: take drawing/design briefs, discuss on-going projects, handover completed projects etc.”
She also informed her employer that she had invested in “an all singing, all dancing new PC which has CAD software installed” to allow her to draw at home.
Fancy new PC aside, CPS Interiors had concerns with her proposals. They were prepared to grant her reduced hours, but were not prepared to permit her to work from home because:
- CPS Interiors’ collaborative way of working often involves designers together in a room looking at technical designs
- Designs often have to be changed at short notice, something that would be difficult if the employee worked only at home in the evenings
Ms Whiteman resigned. She brought claims for breaches of the flexible working legislation, constructive dismissal and indirect sex discrimination.
The Tribunal rejected all of her claims, stressing that there is no right to work flexibly, only a right to request to work flexibly and to have that request dealt with in a reasonable manner.
The Tribunal went on to say that the onus is not on the employer to show that the request is impossible, or very difficult, to accommodate, as “an employer is entitled to run its business as it sees fit and is in the best position to assess what is in its own best interests...” Employers must follow the ACAS code of practice on handling FWRs, but, as long as their approach is not discriminatory, an employer can reject a FWR on one of the grounds specified in the legislation.
The Claimant’s claim for indirect sex discrimination also failed. To succeed, she would have had to be able to show that there was a ‘provision, criterion or practice’ (known as a ‘PCP’) that her employer applied to all employees equally but which puts women at a particular disadvantage and which her employer could not objectively justify. The Tribunal were not prepared to accept that not being able to work from home causes particular disadvantage to women over men, “at least not without any evidence.”
2. Smith v Gleacher Shacklock LLP
Ms Smith was an Executive Assistant, working for a small investment banking firm. In advance of her return from maternity leave, she made a FWR to change her hours from full-time working, to working three days per week in the office, followed by homeworking on Thursdays and not working on Fridays.
Her requested was rejected for a number of reasons, including:
- The impact on the firm’s ability to look after its clients;
- Unpredictability of the claimant’s role;
- Tight timescales for various tasks; and
- Disproportionate pressure on others in the small team.
In evidence, the Respondent provided various “real” examples of recent situations where difficulties would have occurred had Ms Smith not been in the office.
In rejecting her claim for breach of the flexible working legislation, the Tribunal held that it does not have any power to interfere with the employer’s business judgment. As long as they have considered the correct facts, it is for the employer to weigh those facts and analyse their impact on its business.
Her complaint of indirect sex discrimination was also not upheld. In Ms Smith’s case, the PCP in question - the requirement that roles such as the Claimant’s be carried out full time by one employee - did not place Ms Smith at a particular disadvantage. It rejected her assertion that it placed “excessive demands on her time and energy”, as such pressure is an “every-day reality” for parents.
The Tribunal went on to say that even if it was wrong in that regard, the employer had established a legitimate aim. The legitimate aim was to “ensure that its partners and clients received high quality, efficient secretarial support throughout the week, without problematic handovers between part time executive assistants.” The refusal of her FWR was a proportionate means of achieving that legitimate aim.
On the face of it, these cases appear to be very good for employers. They show that FWRs by employees returning from maternity leave can be rejected. They emphasise that the right is simply to request to work flexibly, rather than a wider right to work flexibly whenever an employee feels that it is beneficial to them. They also highlight that the business reasons behind a decision to refuse are for the employer to decide, and the Tribunal are unlikely to interfere with the employer’s judgment. An interesting point of the Smith case was the employer’s ability to provide “real” examples of instances where, had the request been granted, it would have caused difficulties. Such examples may be useful to have to hand should you have to justify your decision to a Tribunal.
However, these are both non-binding, first instance decisions. Indirect discrimination is still something to be very much aware of when considering whether to grant a FWR. Smith shows that an employer can justify turning down such a FWR, although it is fact specific. Any employer considering rejecting a FWR must be prepared to justify it. The indirect discrimination claim in Whiteman failed, but this was due to a lack of evidence before the Tribunal. If an employee was able to provide evidence that, for example, preventing home working did cause a particular disadvantage to women over men, then a Tribunal may find that such a PCP is discriminatory.
The welcome relief we were looking for? Maybe not, but these cases do remind us of the fundamental points when faced by an FWR:
- Handle FWRs in a “reasonable manner” (follow the ACAS guide)
- Respond within the 3 month time limit
- Make sure the reason for refusing the request is one of the specified reasons
- Bear in mind that such a refusal may still be indirectly discriminatory, and be prepared to justify such a refusal