Before consultation started on enhancing the ability to ask to work flexibly, we were reminded of the importance of correctly following the current regime.
In Mrs A Thompson v Scancrown Ltd T/a Manors , a sales manager at a London estate agent was on maternity leave from October 2018 to October 2019. In August 2019, Mrs Thompson met the firm’s owner to ask whether she could return four days per week instead of five and finish at 5.00pm rather than 6.00pm. She had no one to collect her child from the nursery. She offered to use her accrued annual leave for one day a week until January 2020 and to be available by mobile phone when she wasn’t at work. After a nine-minute meeting, her employer rejected the request and wrote to her citing five of the statutory reasons but gave no details.
A tribunal awarded £184,961 to Mrs Thompson for indirect sex discrimination because mothers are more likely than fathers to carry the primary responsibility for childcare. Refusing to allow her to move to a four-day working week and requiring her to work until 6.00pm each day placed her at a substantial disadvantage.
What can we learn?
Take care
Be careful how you manage flexible working requests from employees returning from maternity leave. A failure to consider a request properly or to provide adequate reasons for refusing can result in costly litigation.
Explain
If rejecting the request, don’t merely quote the permitted business reasons verbatim. Explain in detail the specific reasons why the business cannot accommodate the request. It’s not just what you say but how you say it that will dictate how the employee reacts.
Appeal
Allow your employee to appeal against a refusal to grant a flexible working request. Ideally, the appeal should be heard by a different manager.
