Case study: Flexi request ignored

OVERVIEW

Former estate agent Ms T submitted a request to her employer for a flexible working arrangement. After her request was denied, Ms T eventually resigned and took her case to an employment tribunal. She claimed her employer had refused to seriously consider her request and that she was the victim of indirect sex discrimination.

A tribunal upheld her claim and awarded her £185,000 for loss of earnings, loss of pension contributions, injury to feelings and interest.

BACKGROUND

Ms T worked five days a week as an estate agent, finishing each day at 6pm. Upon her return from maternity leave, Ms T asked her employer if she could reduce her working week to four days, with a 5pm finish that would allow her to pick up her child from nursery.

In her application, she set out how her reduced hours might affect the business and offered alternative solutions such as using annual leave, or starting earlier on certain days. But her manager refused the request, advising that they could not afford for her to work part time. Ms T tried to discuss the matter further but was again denied, eventually prompting her to resign.

She took her case to an employment tribunal claiming, amongst other things, that she had suffered indirect sex discrimination. Ms T accused her employer of “shutting her down” and not listening to any of her requests.

OUTCOME

The tribunal upheld Ms T’s claim of indirect sex discrimination. It found that the company’s failure to consider her request put Ms T at a disadvantage and she was awarded £185,000 for loss of earnings, pension and injury to feeling. Additional claims regarding her treatment, including pregnancy and maternity discrimination and harassment, were not upheld.

KEY POINTS

• Employees with over 26 weeks’ service are eligible to make a flexible working request, which may involve shorter hours, a change in start/finish time or compressed hours.
• Any request should be made in writing and include details of the date and changes they are requesting, how the request may affect the practice and the employee’s suggestions on how this could be addressed.
• All flexible working requests must be considered fairly and consistently.
• All requests, including any appeals, must be considered and decided on within a period of three months from first receipt of the request. This period can be extended with the employee’s agreement.
• A meeting to discuss the request should be arranged as soon as possible after receiving the request. While the employee doesn’t have a legal right to be accompanied by a work colleague at this meeting, it is best practice to allow this. However, if both parties agree to the changes, a meeting is not required and the changes should be confirmed in writing.
• When considering requests, take into account potential benefits to the employee/practice and weigh these against any possible adverse effects.
• If the original request cannot be accommodated, an alternative option could be offered. You should ensure that you do not discriminate unlawfully against the employee.

Once a decision has been reached, you must inform the employee as soon as possible in writing.

Broadly speaking, outcomes would be one of the following:

1. accept the request and set a start date 
2. confirm any compromise agreed at the meeting
3. reject the request and clearly explain reasons why, including notification of appeals procedure.

Refusing a request

If you are rejecting a request, it must be for one of the following business reasons:

• detrimental effect on ability to meet customer demands
• burden of additional costs
• inability to reorganise work amongst staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• insufficient work during periods proposed to work
• planned structural changes.

The practice must be able to provide a genuine reason – supported by evidence – for refusal. It is not sufficient to simply state that changing an employee’s working pattern would be “inconvenient” for the practice or would incur additional administration. Remember you may be challenged about this decision in the future.