Employers should ensure they give careful consideration to flexible working requests made during maternity or other long-term leave, as a recent EAT decision highlights that an indirect discrimination claim could succeed (and potentially give rise to an award for injury to feelings) even if the refusal of a request is overturned before the employee returns to work.

In Glover v Lacoste UK Ltd the employee made a flexible working request to work 3 days a week while on maternity leave. This was refused, and at an internal appeal hearing the employer upheld the appeal in part, offering 4 days a week but with a requirement to work flexibly on any day of the week, giving rise to obvious childcare issues. Following a letter before action from her solicitors (asking that the decision be reconsidered and explaining that the claimant felt that otherwise she would have to consider resigning), the employer then agreed to the original request in full, prior to the claimant returning to work.

The EAT ruled that the first instance tribunal had erred in deciding that, because the fully flexible 4 day requirement had not actually been applied to the claimant, it could not ground an indirect discrimination claim. The requirement to work fully flexibly was applied to the claimant at the latest on the determination of her internal appeal (and possibly at the earlier stage of the initial decision, although this was not argued). Her claim could therefore proceed and the case was remitted to the tribunal to determine.