In the last couple of days, you may have seen the flurry of news items around an employee being awarded over £180,000 because her boss refused to let her leave work early. In this piece, Hilary Burgess and David Dixey from Holmes & Hills Solicitors Employment Team examine the £180,000 indirect sex discrimination case and consider whether the Tribunal’s decision is as ground-breaking as the media headlines suggest.
Alice Thompson worked as a sales manager for an independent estate agent. She was highly regarded, successful and earned a significant salary plus commission. Ms Thompson took maternity leave and shortly before returning to work from maternity leave made a flexible working request.
The gist of her request and the various discussions regarding the same, were that she wished to work a four-day week as opposed to five days and that she wanted to finish work at 5pm rather than 6pm, to allow her to collect her child from nursery. Her request was denied by her employer and Ms Thompson subsequently raised a grievance complaining, amongst other things, about her treatment when pregnant and the rejection of her request to work flexibly.
With regards to her treatment during pregnancy, Ms Thompson’s claims included that she had been excluded from group activities on a work trip to New York, she had faced hostility in her last few weeks of work and that her employer had made it difficult for her to attend her ante-natal appointments.
Upon learning that her grievance had been rejected as well as her flexible working request, Ms Thompson resigned from her role. She brought claims in the Employment Tribunal for pregnancy and maternity discrimination, harassment related to sex, indirect sex discrimination in respect of her flexible working request, unfair dismissal and unlawful deduction of commission payments from wages. All claims with the exception of her indirect sex discrimination in relation to her flexible working request failed.
In general terms, indirect discrimination is where there is a provision, criterion or practice (PCP) which applies to everyone equally, but in practice is less fair to those with a certain protected characteristic. There are nine protected characteristics, sex being one of them. If an employer is able to show that there is a good reason for applying the PCP despite the disadvantage suffered by certain individuals with that protected characteristic, it will be objectively justified and will not amount to indirect discrimination.
Getting back to this case then - the Tribunal found that the PCP was the requirement to work full-time 9-6pm, Monday to Friday. The Tribunal accepted that whilst there is an encouraging shift in attitudes in relation to childcare responsibilities it still remains the case that mothers are more likely to carry primary responsibility for children than fathers.
It was also accepted by the Tribunal that Ms Thompson had suffered disadvantage by being required to work until 6pm and work every day. The employer was unable to provide an objective justification. As such, Ms Thompson’s indirect sex discrimination claim in relation to her flexible working request succeeded. The employer had not demonstrated that it had properly considered her request.
The media’s interest in this case clearly stems from the significant amount that Ms Thompson was awarded which was over £180,000. However, it is worth pointing out of course that Ms Thompson was a high earner in her sector, and similar awards are therefore unlikely to be commonplace. Her award included loss of earnings, pension contributions, an injury to feelings award and interest.
So, what can we take from this decision? We think the biggest takeaway here is for employers to carefully consider employee flexible working requests before refusing them outright. Do not simply refuse a request by relying solely on one of the prescribed grounds but rather deal with the request reasonably and consider the impact of any proposed variation to terms.
Furthermore, keep in mind that whilst an employee generally needs 26 weeks’ continuous service to make a statutory request for flexible working, employees with less than 26 weeks’ continuous service have discrimination rights. Thus, any informal requests will also need to be carefully considered to avoid an indirect discrimination claim.
Holmes & Hills team of Employment Law solicitors in Essex and Suffolk provide specialist employment advice to business owners, senior leadership and HR Manager across East Anglia, covering all areas of Employment Law.