Flexible Working and Indirect Discrimination

The coverage in the press in relation to Alice Thompson’s case against her employer Manors Estate Agents is understandable: any case with a large settlement figure and an easy headline is going to attract attention. However, while it is being portrayed as a huge pay out for simply not allowing an employee to leave work an hour early, the Judgment raises important issues for employers regarding their responsibilities to their employees who have parental or caring responsibilities that goes much deeper than simply when an employee finishes work.

Background of the case

Ms Thompson was employed as a sales manager for an estate agent in Marylebone and was enjoying considerable success in her role. She had built a strong team of sales negotiators around her and regularly commanded high commission and bonus payments. On her return to work from maternity leave, Ms Thompson sought to change her working hours so as to fit with her childcare requirements but her employer rejected the application.  This is where the press have got their headlines as the employer was refusing her request to leave at 5 pm.

Following the rejection of her flexible working request, Ms Thompson raised a number of complaints about treatment she had been subjected to in the workplace including details of incidents which occurred during her pregnancy; however, the tribunal found these were relatively minor and did not amount to discrimination.  The complaint also related to incidents after she returned from maternity leave and it was in respect of this period that the tribunal really focused.  The key part of her claim was her allegation of indirect discrimination claim in relation to her request for flexible working.

Indirect discrimination

In order to prove a claim for indirect discrimination, Ms Thompson needed to prove that her employer’s decision put her and women generally at a particular disadvantage when compared to a man to whom the same decision was applied. She argued, relying on survey evidence, that mothers are responsible for the majority of primary childcare and that this was the case in her situation, with the tribunal accepting this argument and finding that she was put at a disadvantage as a result of the employer’s inflexibility when it came to her finishing time.

Because the employers practice placed Ms Thompson and women generally at a disadvantage, it was open to Manors Estate Agents to justify its practice and thereby avoid a finding of unlawful discrimination.  To do this Manors needed to show that the decision was a proportionate means of achieving a legitimate aim. They gave a number of reasons which had varying effect on convincing the tribunal, including additional cost, inability to cover the work or recruit additional staff and planned structural change, most of which were found to be difficult but not insurmountable. In particular the argument that the change would affect the ability to meet customer demand was assessed to have significance, but it was found to not be fleshed out fully enough to justify the indirect discrimination which had occurred.  Effectively, the same aim could have been achieved in a less discriminatory manner and so the decision was not proportionate.

Lessons to be learnt

Employers must bear in mind that they have a legal obligation to consider a flexible working request in a reasonable manner, which includes a consideration of the potentially discriminatory effects of refusing the request.  It is not open to employers to simply refuse requests because it does not suit them to have staff working flexibly.  The employer must consider the impact that refusing a request will have on the employee and if there is a risk of discrimination then an employer will be required to justify the decision.  

The employee making an application has the responsibility to explain the effect of the proposed change and how it may impact the employer, as Ms Thompson did in this case. It is clear from the tribunal’s finding that for an employer to rely on the proportionate means defence they must show that the difficulty that the change imposes on them is insuperable.  The refusal of the employee’s proposed solution must be such that it convincingly outweighed the discriminatory impact on them.

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