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Employer's failure to consider flexible working

View profile for Kate Jones
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The recent case of Mrs Thompson v Scancrown Limited t/a Manors, has hit the headlines as estate agent, Mrs Thompson won a sex discrimination claim with an award of in excess of £180,000.

Mrs Thompson was employed as a London estate agent from 2016. In May 2018 she informed her employer that she was pregnant. Mrs Thompson took maternity leave from October 2018 until October 2019 and following informal discussions while on maternity leave with her employer, she lodged a grievance and made a flexible working request.

Mrs Thompson made a request to work four days per week and to shorten her working day to 5pm from 6pm. Mrs Thompson’s daughter was in nursery which was around an hour’s commute away from her office and closed at 6pm. Therefore, she requested to leave in time to collect her daughter from nursery.

The flexible working request was denied in its entirety for a variety of reasons, despite Mrs Thompson alleging that the meeting only lasting nine minutes.

Mrs Thompson claimed that she had no alternative but to resign from her position.

Although other claims that Mrs Thompson pursued failed at the Employment Tribunal, including pregnancy and maternity discrimination and unfair dismissal, her claim for indirect sex discrimination succeeded and she was awarded a substantial pay out. Mrs Thompson was successful in her claim for indirect sex discrimination on the basis that the Employment Tribunal found that her employer had failed to consider her flexible working request.  

How does this affect you?

Q. Have you correctly made a flexible working request?

A. Any employee has the right to make a flexible working request, provided that you have worked for your employer for at least 26 weeks and that you have not made a previous flexible working request in the last twelve months. However, there is a procedure that should be followed in order to make such a request, if you do not then your employer may not consider it a flexible working request. If you are considering making a request, you should begin by asking your employer for their Flexible Working Policy. It is vital that you ensure that a flexible working request is in writing and provides your employer with all of the relevant information they will need to consider your request.

Q. Was your request denied and on what grounds?

A. Once you have submitted your flexible working request, your employer has a maximum of three months to make their decision. You should be invited to attend a meeting to discuss the request in detail. If you receive the outcome and your request is denied, your employer should have justifiable business reasons for doing so. There are eight business grounds your employer can rely on to deny your request, and these are as follows:-

·       extra costs that will damage the business

·       the work cannot be reorganised among other staff

·       people cannot be recruited to do the work

·       flexible working will affect quality and performance

·       the business will not be able to meet customer demand

·       there’s a lack of work to do during the proposed working times

·       the business is planning changes to the workforce

Q. Do you feel that your request was denied in its entirety without your employer considering it?

A. As this case demonstrates, it is not enough to simply quote business reasons. ACAS guidance is clear that there should be meaningful consultation regarding the request. There may well be fair and justifiable reasons why the request has been denied, but this should be explained to you clearly. In addition, it is advisable for an employer to consider any alternatives to the original request, rather than simply denying the request completely. Although employee’s no longer have a statutory right of appeal, if you employer is considering the request in a reasonable manner they should be offering the right of appeal.

If your request has been denied, it is advisable to take legal advice to ensure that the process followed and reasons given are fair and justified.

For more, contact Head of Employment Sally Morris by emailing sally.morris@mfgsolicitors.com 

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