.png)
A report in the BBC News, after a tribunal ruled that her employer had failed to consider reasonably her request to work a four day week, finishing work at 5 pm to pick up her daughter from nursery. The former estate agent was awarded £185,000 by an employment tribunal for indirect sex discrimination.
She was employed by a small central London estate agent of 10 staff, salary of £60,000 +12% of sales commission and additional bonus if she achieved a sales target. It was common ground that she was successful in her sales role and well regarded. Furthermore, the employee’s role was clearly crucial to the success of this small business.
Prior to the employee’s return from maternity leave, she asked her employer if she could shorten her hours, work a four day week and leave work at 5 pm, rather than the business’ standard end of the day time of 6 pm, in order to collect her daughter from nursery. She proposed that the employee who was covering for her on maternity leave and who was to remain in employment after the employee’s maternity leave, could cover her management duties on day five. Alternatively, the employee proposed that she would also be happy to take off two half days instead, so that she would work five days a week but fewer hours, understanding there would be a pro rata reduction in her salary, annual leave and commission. On finishing an hour earlier, the employee said she would be available by mobile, her colleagues would manage in that hour, as many were out on viewings at that time. She was not able to get anyone else to collect her daughter from nursery, as her husband worked until 7 pm, and her family were not in London.
Her flexible working request was declined as her employer said the business could not afford for her to work part-time and that, for continuity purposes, their clients expected consistency in the sales manager they dealt with, which was a further reason why it would not be suitable to recruit additional staff to cover the proposed hours. She appealed the decision to reject her flexible working request. At appeal, she complained to her employer that her request had not been fairly considered. She complained that none of the grounds relied on in rejecting her request had been explained. In particular, with a new assistant sales manager having been recruited, there was no burden of additional costs or detriment to meet customer demand, inability to arrange work among existing staff, nor impact on or need for additional staff. As for the planned structural change her employer had cited as one of the reasons for rejecting her request she asked what it was, as, if notified to staff, she had been excluded. As to consistency in dealing with clients, she had always encouraged teamwork in sales - information was shared, and customers knew the whole team. As for the handling, she pointed out that the ACAS guidance on flexible working requests provided for discussion, but there had been no discussion or clarification. The response was “no”, without explanation. She subsequently resigned from the company and brought a claim against her employer for constructive dismissal and for indirect sex discrimination. The employee told the tribunal that she had brought the claim so that her daughter did not have the same experience of sex discrimination in her future.
The employment tribunal ruled in favour of the employee, agreeing with her complaint that her employer had failed to provide an adequate explanation for the grounds they had relied on in rejecting her request. For example, the tribunal accepted the employee’s evidence that the team worked as a whole, and was small enough to know and keep abreast of all potential customers and sales, such that there was unlikely to be a detrimental impact on meeting customer demand, or an inability to rearrange work among existing staff. The tribunal found that making the employee work until 6 pm, which is the time when nurseries typically close, placed her at a ‘disadvantage’ on the basis that women are more likely to have primary caring responsibilities and be disadvantaged by a requirement to work these hours. The employer had failed to justify its requirement that the employee continue to work full-time based on the business reasons given for rejecting her request, which could not be evidenced based on the facts. Reflecting her loss of earnings as a high earner, the tribunal awarded her almost £185,000 in compensation, which included the sum of £13,500 for injury to feelings.
As in this case, flexible working requests may pose more difficulty for small employers with fewer staff resources than larger organisations, all employers (regardless of size) are under a legal obligation to deal with flexible working requests ‘reasonably’ and must ensure that their reason for rejecting the request based on one or more of the 8 business reasons (currently) permitted by statute is actually supported by the evidence. Failure to do so may expose employers to a tribunal claim where compensation may be awarded for up to 8 weeks’ statutory pay. The tribunal in this case rejected the employee’s claim that she had been constructively dismissed, finding instead that the reason for her resignation was not any breach of the implied term to act with mutual trust and confidence, but that she did not want or was not able to work the contracted hours. However, where a flexible working request is refused but the decision is deemed to be discriminatory, in addition to a potential claim for indirect discrimination (for which compensation is uncapped), it is likely that this will be held to be a fundamental breach of an employment contract, entitling an employee to resign in response to that breach and claim constructive dismissal.
Disclaimer: Our blog content is for marketing or general information purposes only and doesn't constitute legal advice. Whilst we aim to provide accurate and up to date information, it should not be relied upon as a substitute for advice tailored to your specific circumstances. Reading this blog doesn't establish a client relationship with us. For formal advice please contact us directly: info@affablepartner.co.uk
Comments