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Worried about handling flexible working requests from new mothers?
There has been a lot of publicity recently about the apparent rise of discriminatory treatment of pregnant women and returning mothers. Hopefully you will be aware that to dismiss an employee or subject her to a detriment because she is pregnant would be considered to be an unfair dismissal – and Employment Tribunals could make significant awards against employers who do so.

But were you aware that rejecting flexible working requests for returning mothers could also be seen to be indirectly discriminatory in some circumstances?

There have been a couple of cases recently that have looked at this issue:

In Whiteman v CPS Interiors Ltd and others, the employment tribunal concluded that an employer had properly handled a new mother’s rejected flexible working request to work from home.

Ms Whiteman, a designer for a company that refurbishes commercial premises, requested to reduce her hours on her return from maternity leave after having twins. Her employer accepted her request. However, the employer turned down Ms Whiteman’s request to work from home and to do most of her work in the evenings.

The employer considered that, although working at home primarily in the evenings might have been possible, it could not accommodate the homeworking request because:
its collaborative way of working often involves designers together in a room looking at technical designs; and

designs often have to be changed at short notice, something that would be difficult if the employee worked only at home in the evenings.

Ms Whiteman resigned, citing the handling of her flexible working request as the reason. She rejected the employer’s offer to deal with her complaints under the company’s grievance procedure and to retract her resignation.

She brought tribunal claims for breaches of the flexible working legislation, constructive dismissal and indirect sex discrimination. But the employment tribunal rejected all her claims, stressing that there is no right to work flexibly, only a right to request to work flexibly.

In a separate case (Smith v Gleacher Shacklock LLP), the employment tribunal decided that it was not indirect sex discrimination for an investment banking firm to require a mother to work full time.

Ms Smith, a single parent working as an executive secretary for a small investment bank, was returning from maternity leave. She asked to work three days per week in the office, followed by homeworking on Thursdays and not working on Fridays.

Following a meeting, her employer turned down her flexible working request because of the:

• Impact on the firm’s ability to look after clients;
• unpredictability of her role;
• tight timescales for various tasks; and
• disproportionate pressure on the small team.

Recent examples were given of difficulties that would have occurred had Ms Smith not been in the office. These included assisting with a “highly important” call from the Financial Conduct Authority.

Ms Smith’s appeal against the rejection of her flexible working request was unsuccessful.
The employer made various compromise suggestions, including that she could leave early for nursery runs and initially return on a part-time basis.

Agreement could not be reached and Ms Smith brought tribunal claims for indirect sex discrimination and breaches of flexible working legislation. She later resigned.
The employment tribunal rejected Ms Smith’s claims.

The tribunal accepted that requiring full-time working places women at a particular disadvantage compared with men because women are more likely to be sole parents than men.

However, the tribunal did not believe that the requirement placed Ms Smith at a particular disadvantage. She conceded that she would be financially better off working full time and engaging childcare on Thursday and Fridays.

The tribunal concluded that, in any event, the employer’s stance was justified. The employer’s legitimate aim is to “ensure that its partners and clients receive high-quality, efficient secretarial support throughout the week, without problematic handovers”.

The employer’s means of achieving its aim were found to be proportionate, with the disadvantage caused to the claimant outweighed by the needs of the business.

What these cases mean is that Employers must follow the “Acas code of practice on handling in a reasonable manner requests to work flexibly”. However, as long as their approach is not discriminatory, they can reject a flexible working request on one of the specified grounds under the legislation.

If you are faced with such a request and you need advice, please get in touch.
Posted on 19 Nov 2016

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