Although flexible working has been around for a while now, it reached a new level of prominence during the Covid-19 pandemic due to the need to alter working habits. Post-pandemic, employees and employers alike are continuing to favour flexible working more and more as a way to boost staff retention, work-life balance and also productivity. Today, we are going to look at a recent indirect discrimination case relating to an application for flexible working. The case centres around a retail manager at a Lacoste store who was told that she could not work part time after returning from maternity leave. However, an appeals tribunal found that this amounted to discrimination by Lacoste after she originally lost her claim for indirect sex discrimination.

 

The government reportedly plans to give employees the right to request flexible working from day one at their new job. You can read more about these plans, as well as the current flexible working rules more generally by clicking here.

 

Keep reading this article to learn more about this case, flexible working and indirect discrimination more generally.

 

Background

 

The claimant, Melissa Glover, worked as an assistant store manager at the fashion retailer Lacoste. Prior to her maternity leave, Glover worked 39 hours per week on a flexible basis. In November 2020, while she was on maternity leave, she made a request to work three days a week. This request was rejected, and following the completion of her maternity leave in March 2021 the claimant was placed on furlough as a result of the Covid-19 pandemic.

 

Glover appealed the decision to reject her flexible working request that same month. The appeal was upheld, with the claimant offered part-time work on any four days of the week. This was offered on a six-month trial period, but would be problematic in terms of the claimant’s childcare. It was not accepted by the claimant and her solicitors wrote to Lacoste to ask them to reconsider her request. If this request was not accepted, Glover would resign and claim constructive dismissal.

 

This approach was successful, and Glover returned to work on the basis of her original flexible working request after her furlough period had ended in April 2021. Despite this, the claimant presented the employment tribunal with a claim for indirect sex discrimination on the basis of the original rejection of her flexible working request.

 

Decision

 

The claimant’s claim for indirect sex discrimination was rejected by the employment tribunal. The employment tribunal claimed that the claimant had not suffered any disadvantage due to the fact that Lacoste had reversed their decision to not allow the flexible working request. As a result, the PCP (provision, criterion or practise) did not apply to the claimant.

 

PCP is the application of a workplace policy or practise in relation to indirect discrimination. Under the Equality Act 2010, there are two main types of discrimination: direct and indirect. As the word suggests, indirect discrimination is usually unintentional. The provision, criteria or practise applies to everyone regardless of any of the protected characteristics defined in the Equality Act. Pregnancy and maternity were the relevant characteristics mentioned in this case, one of nine protected characteristics overall.

 

As a result of the rejection of Glover’s employment tribunal claim, she appealed to the Employment Appeals Tribunal (EAT). The appeal was allowed by the EAT, who found that Glover was disadvantaged at the point that Lacoste rejected her flexible working request, despite being on leave at the time.

 

The Employment Appeal Tribunal decided that the PCP applied when the appeal process had been completed. This applies even if the decision is reversed at a later date by the employer, as it was in this case. The employment tribunal had misinterpreted the decision made in Little v Richmond Pharmacology which was used by the EAT as justification for the rejection of Glover’s initial claim. As a result, the EAT found that the PCP did apply in this case.

 

The case will now return to the employment tribunal in order to determine the remaining issues including the specific nature of disadvantage suffered by the claimant. This will help to ascertain the appropriate award for general damages.

 

Our thoughts

 

Employers should be mindful of the consequences when it comes to indirect discrimination and PCP. While employees currently have limited statutory rights when it comes to making flexible working requests, it should be noted that businesses are required to consider the request carefully and only refuse it for a valid business reason. While in this case Lacoste held that managerial staff must work full-time and be fully flexible, this was found to be indirectly discriminatory on the basis that Ms Glover was unable to do so following the birth of her child.

 

Flexible working is an important equaliser when it comes to the workplace as it allows for a level playing field between different types of people who may otherwise be discriminated against. The government has announced plans to expand flexible working legislation by allowing employees to request flexible working from day one among other measures which you can read about here.

 

We would advise employers to proactively review their policies and rules to ensure that they are not unwillingly discriminating against their employees. As was seen in this case, failure to apply PCP has the potential to be discriminatory even when it is not deliberate. If you are unsure of your rights when it comes to request flexible working, or you would like help navigating the legal ramifications of flexible working for your business, feel free to contact us for legal advice and we will be happy to assist you.

 

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