Flexible Working Case Study
An employee who was refused flexible working arrangements brought a claim of sex discrimination an employment tribunal
The Case
Ms Allen worked for a national retailer as a department manager. She went on maternity leave and requested flexible working arrangements so that she could to return to work without working any late shifts (the standard UK terms for department managers at the company require a guarantee that they are available to work late shifts)
The company refused her request on the basis that 2 other male department managers very rarely worked Thursday late shifts due to their own childcare arrangements, and so it would not leave enough cover for sickness absence etc. Ms Allen pointed out that those two colleagues could (and did) work Thursday late shifts when required, and neither had a flexible work arrangement in place, but the company still refused her request
Ms Allen brought a claim of indirect sex discrimination at an employment tribunal
The Tribunal Decision
The EAT tribunal found that Ms Allen’s claims were valid, and the comparator used by the company of two male colleagues were insufficient to justify refusing the request. Other findings were:
- The tribunal found that being required to guarantee availability is very different from being asked on occasion to help out (one can be refused whereas the other cannot) and so a fair comparator must be used if they are to be utilised as justification in refusing a flexible work request
- Where it is possible to refuse flexible working requests for many business reasons, these must meet the statutory definitions provided by the Act, and in this case they do not seem to have been interpreted correctly
- All flexible working requests must be given fair consideration, and decisions must be considered for any direct or indirect discrimination that may occur as a result of them
Case Summary
This case clearly shows that the need to have a robust flexible working policy and procedure so that requests can be addressed fairly and within the narrow legal framework permitted
It also highlights the importance of considering any benefit to the company for embracing flexible ways of working. More employers are reporting an increase in productivity as they take up hybrid ways of working, recent research by the CIPD found that 41% of companies confirmed that trying new ways of working had increased productivity
You can download the Flexible Working Policy plus all of the documentation needed to implement the Flexible working HR Policy here