Employers should be very careful about how they manage flexible working requests from employees returning from maternity leave. A failure to consider a request properly or to provide adequate reasons for a refusal can come back to haunt them in a subsequent indirect sex discrimination claim.
If the employee’s request is rejected, the employer should ensure that the rejection is for at least one of the permitted business reasons. However, it is important that the prescribed reasons are not simply repeated verbatim and that the specific reasons why the request in question cannot be accommodated are explained.
It is good practice to allow an employee to appeal against a refusal to grant a flexible working request. Ideally, the appeal should be heard by a different manager.
In Thompson v Scancrown Ltd (t/a as Manors), the employment tribunal awarded £184,961 for indirect sex discrimination to an estate agent who resigned following the mishandling of her request for flexible working on her return from maternity leave.
Mrs Thompson was recruited for a sales manager role at a small independent London estate agent in October 2016. She had previous experience with large corporate estate agents. It was accepted that she was very successful in building sales income and that she was initially held in high regard by the firm’s owner.
In May 2018, Mrs Thompson announced that she was pregnant. She was on maternity leave from October 2018 to October 2019. While on maternity leave, Mrs Thompson decided to explore a flexible working arrangement for her return to work.
In August 2019, Mrs Thompson met with the firm’s owner to discuss her return to work. When she asked if she could return four days per week, the owner’s response was that she would have to make a formal request. Mrs Thompson took that as a rejection of her request, as she had previous experience of him putting off dealing with issues that she raised (for example she alleged that he had failed to tell her anything about her maternity leave terms until the very last minute).
During the meeting, Mrs Thompson suggested that, as an alternative, she could use up her accrued annual leave one day per week. In practice, this would have allowed her to have a four-day working week until mid-January 2020. She also suggested a colleague who might be able to cover her non-working day each week.
Mrs Thompson also asked to finish work at 5pm, rather than 6pm, on the basis that her child’s nursery closed at 6pm and it was an hour’s drive away in the rush hour.
Mrs Thompson was unhappy with her treatment and raised an unsuccessful grievance. She was asked again to make a formal flexible working request, which she did.
Mrs Thompson had added her accrued holiday leave to the end of her maternity leave, meaning that she was still away from the office in November 2019. In mid-November, she met in person with the owner to discuss her formal request for flexible working. However, she was disappointed that:
the owner had insisted on a face-to-face meeting that lasted only nine minutes (she had asked for the meeting to take place over the phone); and
the owner appeared to be reading a series of questions from a script.
During the meeting, they discussed who could provide cover during her proposed non-working day each week and she offered to be available via mobile phone on those days if necessary. She said that she would be willing to work half days twice per week instead, so that she would still be working five days per week but fewer hours.
In relation to the request to finish at 5pm, Mrs Thompson offered to have her mobile phone with her to answer calls. She pointed out that many of her colleagues were out on viewings from 5pm to 6pm anyway. She stressed that there was no one else to collect her child from nursery, as her husband worked until 7pm and her wider family did not live in London.
One week later, Mrs Thompson received a letter turning down her request for flexible working. The letter cited the reasons as:
- the burden of additional costs;
- a detrimental effect on ability to meet customer demand;
- an inability to reorganise work among existing staff;
- an inability to recruit additional staff; and
- planned structural changes.
The letter also stated that “our clients expect consistency in the sales manager they deal with, which is a further reason why would not be suitable to recruit additional staff to cover the proposed hours”.
Mrs Thompson was offered an appeal, where she complained that the reasons cited were not explained. She pointed out that her proposal did not appear to need additional staff, lead to additional costs, or have a detrimental impact on meeting customer demand. She was also unsure what “structural changes” were being planned. In terms of consistency when dealing with clients, she stressed that she had always encouraged teamwork in sales – information was shared, and customers knew the whole team.
Mrs Thompson’s appeal was unsuccessful. She resigned and brought an employment tribunal case, which included a claim for indirect sex discrimination.
Employment tribunal decision
The employment tribunal refused to criticise the firm’s owner for asking Mrs Thompson to submit a formal request for flexible working. It noted that this was to be expected as her contract of employment was for full-time working and that she was seeking to change her terms.
The tribunal accepted that, while many employers do agree to some form of flexible working, requests can pose more difficulty for small employers with fewer staff resources than larger organisations. The tribunal also highlighted that staff within this firm had previously returned to part-time working after maternity leave, albeit only to administrative roles, which suggested that there was no inherent hostility to altered hours following maternity leave.
In relation to Mrs Thompson’s indirect sex discrimination claim, the employment tribunal concluded that:
- notwithstanding an encouraging shift in societal attitudes, it is still the case that mothers are more likely than fathers to carry the primary responsibility for childcare;
- the refusal to allow her to move to a four-day working week and the requirement to work until 6pm each day placed her at a substantial disadvantage;
- while the firm’s owner was understandably cautious about changing the arrangements for a successful team, the refusal of the flexible working request was not a proportionate means of achieving the legitimate aim of maintaining successful relations with customers.
The employment tribunal upheld the indirect sex discrimination claim.
The tribunal awarded £184,961 to Mrs Thompson.
The majority of the award was for loss of earnings from December 2019 until October 2021, which is when the tribunal anticipated that Mrs Thompson would obtain work at a comparable salary, given the impact of the pandemic on the job market in this sector and the London housing market.
The award included £13,500 for injury to feelings. In placing her compensation in the middle Vento band, the tribunal highlighted that Mrs Thompson “explained how devastated she felt at having built up the team and formed relations with clients, only to lose it because she was pregnant”.
Case transcript of Thompson v Scancrown Ltd (t/a as Manors)
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