Flexible working has hit the headlines this month after Alice Thompson, an estate agent, was awarded in excess of £184,000 in compensation by an employment tribunal (ET) when her flexible working request was refused by her employer.
Is this a landmark case?
Whilst this case attracted significant publicity due to the level of the award, it does not change the law relating to indirect sex discrimination, nor should it be viewed as an unusual event. Ms Thompson’s case is in fact a stark reminder of the issues that working parents, predominantly but not exclusively women, face on a daily basis as they seek to balance the demands of work and family responsibilities. These issues are of course only likely to increase as we emerge from the Covid -19 pandemic and see a return to more traditional working arrangements.
Ms Thompson was employed as a sales manager at an estate agents, earning £120,000 per year. Under the terms of her contract, she was required to work from 9 am to 6 pm. On her return from maternity leave, she requested to work four days per week and to leave at 5 pm to enable her to pick up her daughter from nursery before it closed at 6 pm.
Her flexible working request was refused by one of the company directors. Having sought unsuccessfully to resolve the situation, then raising a grievance which was not upheld, Ms Thompson resigned from her role. She then struggled to find another position.
She brought various claims against her former employer, including a claim for indirect sex discrimination, on the basis that her employer’s policy of requiring employees to work full time hours, and not letting her leave before 6 pm, placed women at a particular disadvantage, it being accepted that women are more likely than men to have the bulk of childcare responsibilities which may call for a more flexible working pattern.
The ET upheld her indirect sex discrimination claim in May this year, and in August her case proceeded to a remedy hearing, the outcome of which has just been published.
Will this change how other companies deal with women with childcare issues?
In assessing the level of damages payable, the ET considered what would have happened but for the act of discrimination. It found that if her employer had granted her flexible working request, Ms Thompson would not have resigned from her employment.
Taking into account her past and future loss of earnings, including pension loss and interest payments, together with an award of £13,500 for injury to feelings (for being discriminated against), Ms Thompson’s total compensation amounted to just over £184,000.
Was she right to pursue the legal route?
Commencing legal proceedings should of course be a last resort, and it is to be hoped that many employers and employees will be able to reach a common sense agreement on such issues. The Government is considering making flexible working the default arrangement; however any changes are a long way off, and currently employees only have the right to make a formal request under the statutory procedure.
Whilst employers have to consider such requests reasonably and objectively, they can refuse them on various grounds, including a detrimental effect on the ability to meet customer demand, and an inability to reorganise work among existing staff, both of which were relied on by her employer when refusing Ms Thompson’s request. For now the legal route remains a necessary one for many working mothers.
What is next for flexible working?
Although flexible or hybrid working is very much on the agenda for many employers, it is clear from Ms Thompson’s case that there is still a long way to go. The statutory right to request flexible working may be only of limited value; however employers who continue to impose inflexible and non-family friendly working patterns on their staff may well find themselves facing expensive indirect sex discrimination claims.