The Claimant was employed as a manager at the global fashion brand Lacoste. She was contracted to work 39 hours per week over five days. Before returning to work after maternity leave the Claimant submitted a flexible working request in order to reduce her days to three fixed days per week. The application was refused, and the Claimant appealed. As a result of the appeal the Respondent offered the Claimant four days a week instead, on the proviso that she be fully flexible about when these days would be. The Claimant refused this as childcare would be very difficult to arrange. The Claimant then instructed solicitors to write to her employer asking for reconsideration otherwise she would be forced to resign. The employer reversed the decision and the Claimant was given the hours she originally requested.
The Claimant then raised a claim for indirect sex discrimination. The definition of this is that the employer has a provision, criterion, or practice (PCP) in place which applies to everyone but which negatively impacts a particular group based on their shared protected characteristic. The Claimant asserted that the requirement that all managers work fully flexible days was the PCP that negatively affected her as a working mother.
The tribunal dismissed this claim. A previous Employment Appeal Tribunal (EAT) case (Little v Richmond Pharmacology Ltd UKEAT/0490/12) had stated that where the flexible working request was initially denied but then subsequently allowed, the decision did not amount to indirect discrimination as there was no ultimate disadvantage or detriment. The tribunal in this case considered it was bound by the decision in Little.
The tribunal did acknowledge that it would have been distressing for the Claimant to anticipate needing to resign but she was not actually required to do so. The tribunal accepted that a PCP of requiring fully flexible working, with four weeks’ notice of shifts, would put women at a particular disadvantage because of difficulties in arranging childcare, and that the Claimant was put at this disadvantage.
The Claimant appealed to the EAT stating that the case of Little was incorrect and should not be followed. The appeal was successful.
The EAT considered that the tribunal had misinterpreted the decision in Little. Little was stating that the result of a flexible working application does constitute a PCP and can result in disadvantage or detriment. Once a decision on the application has been taken this will still constitute a PCP even if the employee has not returned to work or worked under the new arrangement.
The claim has now been remitted to the employment tribunal to determine any further unresolved issues and to decide on compensation. The question as to whether the Claimant was subject to disadvantage or detriment will be dealt with then but the EAT stated that it was hard to see on what basis it could be held that the Claimant suffered no disadvantage or detriment when her original flexible working request was determined against her and she felt she had to consider resigning.
For employers, this case makes clear that a successful appeal by the employee against an employer’s rejection of a flexible working request does not cure any disadvantage or detriment the employee experienced when the application was initially rejected. It is critically important that these requests are considered through the lens of protected characteristics and the potential for discrimination.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.