Rejecting a flexible working request - Implications for employers

Join our employment experts Dan Begbie-Clench and Karen Holden who discuss flexible working requests in light of the recent Employment Appeal Tribunal decision in the case of Glover v Lacoste UK Ltd and Harmon.

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Glover v Lacoste UK Ltd and Harman

Karen: Thank you for joining us for our Doyle Clayton podcast on the latest cases and legal developments of interest in the workplace. Today we're going to be talking about the rejection of flexible working requests and the concept of disappearing discrimination.

I'm Karen Holden, a legal director in our Reading office and I'm joined today by one of our partners, Dan Begbie-Clench, who heads up our Canary Wharf office. In this session we're going to consider flexible working requests in light of the recent Employment Appeal Tribunal decision in the case of Glover v Lacoste UK Ltd and Harman.

So, Dan, most HR professionals are aware of the basics around dealing with a flexible working request under the Employment Rights Act, in terms of following the statutory procedure, complying with the time set periods and understanding the eight permitted business grounds for rejecting an application, but what type of claim is the most common that you see being litigated?

Dan: Hi Karen, rejecting flexible working applications can form the basis for different types of claims for employees, but most of the claims we see involve women bringing indirect sex discrimination complaints where their request is made during or after maternity leave, or it's a later request in relation to childcare.

Rejection of flexible working requests and PCP?

The employer's rejection of their request is said to include a PCP, which discriminates against the employee. PCP is a term you'll hear a lot in certain types of discrimination claims, and it means provision, criterion, or practice - in other words, some sort of rule or policy.

And, in an indirect discrimination case the PCP or the rule or policy is said to be applied by the employer across its workforce, and it might seem to be a neutral policy on the face of it, but in fact it may have a particularly disadvantageous impact on the women in the workforce compared to men, and so it's said to be indirectly discriminatory in relation to sex if the claimant employee can show that she was also disadvantaged by this PCP.

Flexible working requests and Childcare Disparity

Karen: It has long been the position that tribunals are required to take judicial notice of the fact that women bear a greater burden of childcare responsibilities than men, and this can limit their ability to work certain hours - and this is called the “childcare disparity”. It’s relevant to assessing indirect sex discrimination claims like this. But that doesn't necessarily mean that all rejected flexible working requests put or would put women at a particular disadvantage, does it?

Dan: No, that's right, Karen. A tribunal would have to consider if there was a group disadvantage based on the facts of each case, considering the correlation between the general position on women resulting from the childcare disparity and the particular provision, criterion or practice that the complainant is complaining about. An example of a PCP where the childcare disparity could come into play, could be the requirement for staff to work a shift pattern.

What happened in Glover v Lacoste UK Ltd and Harman

Karen: So, this takes us to the case of Glover v Lacoste UK Limited and Harman. Lacoste is a well-known sports and leisure wear brand. Ms Glover works in one of its shops as an assistant store manager on full-time hours, working five days a week, which were fully flexible based on a rota with four weeks’ notice. So, the starting point was that she was always liable to work varying days on the shift rota which was planned four weeks ahead. Her childcare responsibilities meant that she wanted certainty about the days that she would work upon her return from maternity leave. A few months before the end of her maternity leave, Ms Glover made a flexible working application to work three fixed days a week, which was rejected around the time that her maternity leave was ending.

Ms Glover didn't return to work, she took some annual leave and then, as this happened during the pandemic, she was put on furlough.

Ms Glover appealed the flexible working decision through the company's internal procedure, and the appeal outcome was to reject her request for three fixed days again, but this time Lacoste offered her to work four days a week flexibly on any day of the week, but this was subject also to a six-month trial period.

Dan: But Ms Glover wasn't happy with this - she'd still have the uncertainty of not being able to make long-term plans for childcare if her working days would vary each month. So, her solicitor sent a letter to Lacoste asking for the decision to be reconsidered and threatening that Ms Glover might treat herself as having been constructively dismissed due to her flexible working request being rejected.

That letter did the trick, and Lacoste walked back its proposals and actually agreed to accept her original application in full - that she would work on three fixed days per week.

And just to remind listeners, it's relevant to note that Ms Glover hadn't been required to work during this time because she was on furlough, so her new working hours had been agreed before she had to carry them out in practice.

Why did Ms Glover bring a claim?

Dan: Well, she argued that she had still suffered discrimination through the request, being rejected in the first place and then rejected again on appeal. And she brought an indirect sex discrimination claim, arguing, amongst other things, that the company had applied a provision, criterion or practice, being a requirement for its employees to work fully flexibly, in that their days of work would vary every four weeks on the rota.

However, Lacoste argued that she hadn’t been required to work fully flexibly because, whilst the internal process was ongoing, there was no requirement for her to work on the variable shifts - she was on furlough - and the company's about-turn when it finally agreed to her application meant that the PCP was never applied to her.

Karen: In other words, all of the flexible working application process had been about her intended work hours when she returned to work, even though her request was rejected, she had never actually been required to work under the arrangements that she didn't want to work under. Lacoste was essentially arguing that she had not come to any harm and hadn't suffered discrimination when it twice rejected her flexible working application.

Ms Glover argued that it still had been distressing for her to anticipate that she may have had to have resign because she couldn't find or afford flexible childcare. So, what was the outcome in the recent case of Ms Glover, Dan?

The outcome of the case

Dan: The Employment Tribunal accepted that a provision, criterion or practice of requiring fully flexible working, with four weeks’ notice of shifts, would put women at a particular disadvantage compared to men because of the difficulties in arranging childcare, and it found that Ms Glover was also put to this disadvantage. However, the tribunal decided to reject Ms Glover's claim because it found, relying on other case law, that she had suffered no harm because she'd never been required to work fully flexibly, following her return from maternity leave, because she was on furlough.

Ms Glover appeals the Employment Tribunal decision

Karen: Ms Glover appealed this decision to the Employment Appeal Tribunal, and it's interesting to note that her case was given support by the Equality and Human Rights Commission, which serves as a reminder to employers that from time to time, external groups take up a cause and help an employee to continue litigation against their employer.

Dan: Yes, and the Appeal Tribunal decided that the original Employment Tribunal had made a mistake when it decided that the PCP had not been applied to Ms Glover because she hadn't actually returned to work yet, and that she hadn't suffered discriminatory treatment as a result.

Because, taken to its logical conclusion, that interpretation would mean the more discriminatory the PCP, the less likely it would be found that the employer had applied it, because it would be less likely for an employee to return to work under it.

So, the Appeal Tribunal upheld Ms Glover's appeal and commented that it was hard to see on what basis it could be said that Ms Glover hadn't suffered any disadvantage when her flexible working request and then her appeal were decided against her, and also taking into account that she felt she had been constructively dismissed as Lacoste had been setting in her view, impossible conditions for her return to work.

Karen: So, even though she never returned to work after maternity leave, and even though Lacoste had walked back its decision and ultimately agreed to her flexible working request for three fixed days, the fact that Lacoste had initially rejected her request, and again rejected it on appeal, meant that it could be said that she had suffered harm and discriminatory treatment. The case was sent back to be decided by another tribunal.

So, the upshot here is that once the flexible working application is determined, the provision, criterion or practice is applied, even if the employee has not returned to work or attempted to work under the new arrangements.

Implications of rejecting a flexible working request

Dan: Yes, that's correct Karen. So, the lesson learned is that it's important to really consider carefully the implications of rejecting a flexible working request. And even if you eventually reverse your decision, which the employee claims to have been based on discriminatory treatment, that doesn't make the discrimination disappear even when the employee hasn't actually been required to work under the pattern in question.

Karen: One thing that employers could think about if rejecting an application for flexible working in similar circumstances, is to make it clear in writing that it is a provisional decision which is subject to appeal. And if they are unsure to offer a trial period first?

Dan: Yes, it's become more difficult for employers to reject flexible working requests in line to the new ways of working that have really come to the fore as a result of the pandemic. And it's also worth remembering that the government has recently consulted on proposed changes to make flexible working the default position, with employees having the right to request flexible working on day one of their employments, and the consultation outcome has supported this.

Karen: The consultation proposals also supported additional changes such as employees no longer being required to explain the effect of their request and how the effects might be dealt with. Employees will also be able to make two requests in twelve months as opposed to the current limit of one, and reducing the time the employer must respond to requests to two months as opposed to their current three month period. In essence, this means that employers could face more requests and could find that employees restate similar requests in quick succession, so that's the direction of travel.

Dan: Exactly. And the government has said that it intends to take all of these proposals forward and the employment relations flexible working Bill recently had its third reading in February in the Commons, and I think it's now in the House of Lords. And if it's adopted, it's expected that these changes will be brought in later this year or more likely in 2024. When effective this is going to place a slightly heavier burden on employers when considering and rejecting an application for flexible working. And although employers are still going to be able to reject a request for one of the eight permitted business reasons that are set out in the current law, they may be obliged to consult with the employee to explore the available options before doing so.

Karen: It's definitely worth employers keeping this in mind now and considering how they will adopt their policy and ways of working moving forward.

That's all we have time for in this session. Thanks very much for joining us. Thanks, Dan.

If you need any help navigating a difficult, flexible working application or you're updating your policy, please do get in touch with one of us below.