2 March 2023 by Susanna Spencer

Flexible working and indirect sex discrimination

What should employers watch out for when dealing with flexible working requests to avoid discrimination?

The world of work changed during the Covid-19 pandemic, with home working and then hybrid working becoming the ‘new normal’.

Now that employers are increasingly requiring staff to return to the office, there has been a surge in flexible working requests, including for reduced and compressed hours, and working from home.

Such requests are often made by women and those with caring responsibilities. Employers should take care when responding to ensure they are not inadvertently discriminating against these employees.

Recent Employment Tribunal (“ET”) decisions

In the 2021 case of Dobson v North Cumbria Integrated Care, Mrs Dobson, a community nurse for an NHS Trust with three children (two of whom are disabled) was asked, together with the rest of her team, to participate in a new work pattern, including a requirement to work occasional weekends. Ms Dobson refused due to the difficulties this would cause to her childcare arrangements, and she was later dismissed.

The ET rejected Ms Dobson’s indirect sex discrimination claim, holding that Ms Dobson had failed to show that women were disadvantaged by the requirement because the rest of her team, including 8 other women with children, were able to comply with the new requirement.

The Employment Appeal Tribunal (“EAT”) disagreed. It found that the ET should have considered potential disadvantage not only within Ms Dobson’s team, but for community nurses across the entire NHS Trust. It also found that the ET should have accepted, without Ms Dobson providing specific supporting evidence, the fact there is a ‘childcare disparity’ i.e. women are more likely than men to bear the bulk of childcare responsibilities and this may limit their ability to work certain hours. The EAT did acknowledge that men do now undertake a greater proportion of childcare than they did in the past. However, it noted that “the position is still far from equal”.

Similarly, in the 2022 case of Follows v Nationwide, Mrs Follows had argued it was indirectly discriminatory towards women for Nationwide to require all Senior Lending Managers to attend the office full time to supervise junior staff. Mrs Follows was unhappy with this given she had been employed on a home working basis which assisted with her responsibilities as primary carer for her elderly and disabled mother. The ET accepted that women are more likely than men to having responsibilities for elderly relatives and upheld the claim of indirect sex discrimination, amongst other claims.

Getting it wrong can be expensive

In the 2021 case of Thompson v Scancrown, Mrs Thompson, a manager at Estate Agents, Scancrown, made a request for flexible working following her return from maternity leave. She requested a 4-day working week and finishing work at 5pm instead of 6pm so she could collect her child from nursery. She suggested ways of mitigating against any negative impacts on the business, including being available by mobile phone when she left early. The employer refused her request and Mrs Thompson resigned.

The ET found that the requirement to work full time, 9-6pm, Monday-Friday, placed Ms Thompson at a disadvantage in comparison with men. It held that the employer had indirectly discriminated against Mrs Thompson as there had been a failure to properly consider her flexible working request.

The ET considered that whilst the employer had provided business reasons for rejecting the request, including the impact on client relationships, and not wanting to make changes to the team at a time of economic uncertainty, these were not based on sufficient evidence and did not outweigh the discriminatory impact on the Claimant.

The ET awarded total compensation of £184,961, mostly for loss of earnings over a period spanning 22 months, given the time it expected for Mrs Thompson to find a new job.

Impact of these decisions

Following Dobson, it will be easier in many cases for women to succeed in indirect sex discrimination claims concerning working patterns and childcare difficulties, by relying on the ‘childcare disparity’ rather than having to produce their own supporting evidence to show they are placed at a disadvantage in comparison with men.

What should employers do?

Employers should ensure they have a clear and robust flexible working policy in place, and that they consider requests for flexible working carefully and sensitively. Trial periods should be considered where appropriate if there are doubts about the workability of a given arrangement.

In cases where employers wish to reject flexible working requests, care should be taken to ensure that the rationale is clear and evidence is gathered to back up the decision. This is especially the case given employees are likely to point to successful examples of pandemic flexible working arrangements, making rejection of requests more challenging.

If you require any assistance for your business with handling flexible working requests, please do not hesitate to get in touch with Susanna Spencer

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