The EAT in Shaw v CCL Ltd has held that a rejection of a request for flexible working could amount to sex discrimination and also constructive dismissal.

Background

Following six months of maternity leave, Mrs Shaw requested to work on a part time basis. She submitted a flexible working request stating that she did not want to work more than 100 miles from home or stay away from home overnight on business. Her request was rejected and Mrs Shaw resigned claiming sex discrimination and constructive dismissal.

The EAT held that the Tribunal had erred in looking separately at the issues of discrimination and constructive dismissal and considered that the reason for her resignation was because of the way she had been treated, which the Tribunal had found to be discriminatory. The EAT further held that, as any act of discrimination is a breach of the implied term of trust and confidence, she was entitled to resign and treat herself as constructively dismissed.

Impact on employers

  • Employers need to be aware that rejecting a flexible working request could lead to the employee claiming not only sex discrimination but also constructive dismissal.
  • Refusal of a flexible working request needs to be objectively justified, supported by evidence and based on one of the following statutory 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 period the employee proposes to work or
    • planned structural changes.