Hello and welcome to our latest employment video for 2021. My name’s Paul Griffin and I’m Head of the Norton Rose Fulbright Employment Team in EMEA.
In this month’s video I’m looking at a couple of recent cases on discrimination and in particular where employees request flexible working or where the employer is seeking to limit the ability of employee’s to work from home. This is something that many employers may face going forward.
What is flexible working?
Under the current Flexible Working Regulations 2014 (which the government is currently reviewing), employees with at least 26 weeks’ continuous service have the right to request flexible working. The legal right is for an employee to make a request to their employer and for the employer to consider the request properly. An employer should deal with all such requests in a “reasonable manner” and can only refuse the application for one of the prescribed grounds set out in the regulations.
However, employers also need to be mindful of other statutory protections that employees may have when making a request, such as a claim for discrimination under the Equality Act 2010. Where there is an indirect discrimination claim an employer can seek to justify their actions by showing that the actions taken were a proportionate means of achieving a legitimate aim.
Indirect discrimination claim
The first case hit the headlines recently after an estate agent was awarded nearly £185,000 in compensation when her employer refused her flexible working request and she successfully claimed indirect sex discrimination.
The employee was employed as a sales manager for the estate agent and her contract of employment required her to work between the hours of 9am and 6pm. On her return to work following maternity leave she put in a flexible working request to work four days a week and to leave the office at 5pm to enable her to pick her daughter up from nursery before it closed. Her request was denied by one of the directors and she resigned. She then brought various claims against her former employer including a claim for indirect sex discrimination on the basis that requiring employees to work full time and not to leave before 6pm was a provision, criteria or practice (or PCP) which put female employees at a particular disadvantage. This is based on the assumption that women are more likely to bear the childcare responsibilities. In this case, the Employment Tribunal upheld the employee’s discrimination claim holding that although the employer relied on some of the statutory reasons for refusing the flexible working request, the explanation justifying the indirect discrimination was not provided. In the tribunals’ view the respondent had not shown that refusal of the proposed reduction in hours of work was proportionate to the real need of the business to maintain successful relations with customers.
The second case involves a claim for indirect associative discrimination by an employee relating to the disability of her mother for whom she had caring responsibilities. This decision by the Employment Tribunal is the first time that UK law has upheld a claim for indirect associative discrimination following a previous decision of the European Court of Justice.
The employee in this case was employed by a building society before being made redundant. Her employment contract allowed her to work from home two to three days a week to care for her disabled mother. However, following a reorganisation the employer decided that all staff in the claimant’s role should be office based only, to allow for staff supervision. During the redundancy process the employee made it clear that she wished to maintain her current homeworking arrangement. The claimant was dismissed and she brought claims for unfair dismissal and discrimination.
The employees claim for direct associative discrimination failed as a comparator who also worked on a homeworker contract, but was not disabled and was not a carer was treated in the same way as the claimant. However, she was successful in her claim for indirect associative disability discrimination. The tribunal held that the PCP of requiring employees in the same role as the claimant to work solely in the office put the claimant at a substantial disadvantage because of her association with her mother’s disability and the employer had not taken any steps to avoid the disadvantage. The Tribunal held that the reference in the Equality Act to a relevant protected characteristic must be read so that it applies to employees who are associated with a person who has a relevant characteristic.
Going on to look at whether the PCP could be justified, the respondent relied on the legitimate aim of needing to provide effective supervision and support to more junior staff. However, the tribunal held that the aim requiring the staff to be on site was in itself an aim containing a discriminatory element and so could not amount to a legitimate aim. Even if that was wrong, then the tribunal went on to hold that selection of the employee for redundancy was not in itself a proportionate means of achieving that legitimate aim. The respondent had also not taken into account alternative, non-discriminatory means of achieving its aim.
What should employers do?
Both these cases show that employers must carefully consider any PCP and whether it could disadvantage an employee either because they have a protected characteristic or as a result of their association with someone with a protected characteristic. Employers need to consider whether there is a proportionate means of achieving a legitimate aim and have evidence to support any justification. The cases also highlight the importance of considering any flexible working requests carefully and the potential costs to an employer of getting it wrong.
As I’ve mentioned, the government is currently reviewing the flexible working regime and on 23 September it published a consultation paper looking at changes to the regulations. The proposals include making the right to request flexible working a day one right, and also whether to require an employer to consider alternatives when refusing a request. The consultation closes on 1 December 2021 and we will keep you updated with any proposed changes.
If you would like any further information then please do get in touch.