Our discrimination expert, Senior Solicitor Katie Harris, answers your questions on difficult discrimination issues in employment. Names and circumstances have been changed to protect the identities of those involved.

This month, Katie looks at dealing with flexible working requests.

Question

I’m an HR Advisor working for a global retail company. I need some help with an employee, Anne, who has recently returned from maternity leave. Anne works full time as a Technical Account Manager in our sales team. She returned from maternity leave to her normal role 8 weeks’ ago. Since returning, she has been using her accrued annual leave entitlement to reduce her working hours to 3 days’ per week.

A couple of weeks’ ago, she sent an email to her Line Manager asking whether she could reduce her contractual working hours to 3 days’ per week on a permanent basis. Her Line Manager held a meeting with her to discuss her request. However, he decided to decline it on the basis that the department is too busy.

Anne has now appealed this decision on the basis that she has been working part time for the last 8 weeks, which proves that her request can be accommodated. She has said she thinks she’s being discriminated against on the grounds of her pregnancy and maternity leave, and is threatening to take us to a Tribunal if we don’t grant her request. She’s also said we haven’t followed the correct process. Do we have to grant her request?

Answer

When dealing with requests from employees to work part time, there are two main areas that you need to consider. The first is the Statutory Flexible Working regime. The second is the potential for an indirect or direct discrimination claim.

Statutory flexible working This is the right for employees with 26 weeks’ continuous service to ask to work flexibly. The right is to have that request considered and dealt with under a set process. It is not a right to work flexibly. However, employers can only reject the request on one of 8 lawful grounds.

If the employer does not follow the correct process, rejects the request for a reason that does not fall within one of the 8 lawful grounds, or bases their decision on incorrect facts, an employee can issue a claim in an employment tribunal for an award of up to 8 weeks’ capped pay.

From what you have told me, it sounds as though your business may be able to rely on a number of ‘lawful’ grounds for rejecting Anne’s request, including a ‘detrimental impact on customer demand’ or an ‘inability to reorganise work among existing staff’. You should ensure you can demonstrate there are reasonable bases for concluding that these grounds apply, and can provide evidence to support this, such as data showing an increase in customer demand.

In order for the Statutory Scheme to apply, the employee must make a request in writing, and must include certain specific information about the nature of their request. It is unclear from what you have told me whether Anne’s email satisfies these criteria. If not, then the Statutory Scheme will not apply, and you will not be obliged to follow the strict process provided for by the Scheme. However, for reasons set out below, I would still recommend you follow the statutory process, as it will help you to defend other claims that may arise out of this situation.

Discrimination

Anne has alleged that, by having her request rejected, she has been discriminated against on the grounds of her pregnancy or maternity leave.

Even if you have followed the Statutory Flexible Work process as outlined above and have a reason for rejecting the request that falls within one of the 8 ‘lawful’ reasons, it is still possible for an employee to claim they have been either directly or indirectly discriminated against as a consequence of that decision.

In order to claim discrimination on the grounds of pregnancy or maternity leave, Anne must demonstrate she was in the ‘protected period’ when the alleged act of discrimination took place. In most cases, the ‘protected period’ commences when the employee falls pregnant, and ends when she returns to work from maternity leave. As the decision to reject Anne’s request was made a number of weeks after she had returned to work from maternity leave, she was not in the ‘protected period’ when the decision was made, and so she will not be able to claim discrimination on this ground.

Anne may try to argue that the decision to reject her request was indirectly discriminatory on the grounds of her sex. Indirect discrimination arises when an employer applies a ‘provision, criterion or practice’ (‘PCP’) to all employees, that places employees sharing a ‘protected characteristic’ at a particular disadvantage. It has long been held that a requirement for employees to work full time is likely to be a PCP which places women at a particular disadvantage when compared to men. This is because tribunals and courts by and large accept that women bear the burden of childcare responsibilities, and therefore are more likely than men to need to work part time.

If Anne succeeds with this argument, your business will need to demonstrate that, in asking Anne to work full time, it had a legitimate aim it was trying to achieve, and that the requirement to work full time was a proportionate means of achieving that aim. In practical terms, this means providing evidence that: (i) there was a legitimate business need for employees to work full time; (ii) Anne’s request was properly considered; and (iii) alternatives were explored and it was established that there was no other way of satisfying the business need.

This is where the value of the Statutory Flexible Working Scheme comes in. If your business has followed the statutory process correctly, it will have a much better chance of justifying its decision and defending any potential discrimination claims.

Of course, in recent years’, the notion that women bear the burden of childcare responsibilities has started to become eroded as more and more women return to the workplace and become the primary earner for their family. In order to show that she, as a woman, has been disadvantaged by the requirement to work full time, Anne will need to show that this requirement disadvantages women in your particular workplace. If you employ a large number of full time female employees, Anne may struggle to get her claim over the first hurdle.

As with anything, much will depend on evidence. Before reaching a decision in Anne’s case, you should make sure that:

  • All alternatives have been considered, discussed and explored with Anne (including a different working pattern, working from home and/or a trial period);
  • You are acting consistently with how you have treated other similar requests in the past; and
  • You can evidence why full time employees are needed. Cost on its own is unlikely to be sufficient justification. In particular, you will need to show why the business was able to accommodate Anne working part time for a temporary period using her annual leave, but is unable to accommodate this moving forward. Indeed, the fact that Anne has worked part-time may help you establish a business case for needing a full time employee as it may have generated evidence that, for instance, customer demand was negatively impacted by Anne working part-time.

Provided you have followed the correct process, and can justify your decision, then you can indeed reject Anne’s request if it is right for your business to do so. However, think carefully before doing so – there is compelling evidence that offering a flexible workplace has significant advantages for employers, not least the attraction and retention of talented staff. In the current climate of economic uncertainty and skills shortages, this may be sufficient commercial incentive to try and adopt a more flexible approach to working hours.