In Glover v Lacoste UK Limited and another, the Employment Appeal Tribunal (EAT) held that an employer’s rejection of a flexible working request at the initial request and subsequent appeal stage resulted in a potentially discriminatory working pattern being ‘applied’ to the employee. This was the case despite the employer later changing its decision and never actually obliging the employee to work under the unwanted working pattern.
What Happened in this Case?
Lacoste employed Ms Glover as a full-time assistant store manager. During her maternity leave, she put in a flexible working request, asking to reduce her work pattern to three days a week. After this request was turned down by her employer, she appealed the decision.
At the appeal stage, her employer put forward a compromise proposal, namely that Ms Glover could work a four-day week on a six-month trial basis but was required to work flexibly on each of those four days.
This was unacceptable to Ms Glover, who felt that the requirement to work flexibly made it impossible to organise childcare. Her solicitor contacted Lacoste asking them to reconsider the appeal decision otherwise Ms Glover would have to think about resigning and claiming constructive dismissal. Lacoste then backtracked and agreed in full to the initial flexible working request of three days a week. Ms Lacoste returned to work but brought a claim in an employment tribunal for indirect sex discrimination.
What is Indirect Sex Discrimination?
Under Section 19 of the Equality Act 2010, indirect sex discrimination takes place when a provision, criterion or practice (PCP) is applied equally to the claimant and other employees of a different sex, but the PCP puts or would put the claimant and persons of her sex at a disadvantage and the PCP cannot be objectively justified. In this case, Ms Glover argued that the requirement for flexible working was the relevant PCP.
The tribunal agreed that had the PCP been applied to Ms Glover, it would have put women at a disadvantage due to childcare issues. However, it concluded that the relevant PCP had not been in fact applied as Lacoste reconsidered and agreed to the initial request before she was required to return to work. Ms Glover had, as a result, not suffered a disadvantage. With financial support from the Equality and Human Rights Commission, Ms Glover appealed to the EAT.
What Did the EAT Decide?
The EAT held that the tribunal had erred in concluding that the employer’s discriminatory requirement (PCP) had never been ‘applied’ to Ms Glover. The requirement to work on a fully flexible basis had been applied to Ms Glover at the final appeal stage when her request for flexible working had been determined in full. This could still result in a disadvantage to her – it did not matter that she had not worked under a fully flexible arrangement.
In this case, the EAT indicated that it was hard to see how Ms Glover had not been disadvantaged given that the appeal had been decided against her, resulting in her having to consider resignation. It nevertheless sent the claim back to a newly constituted tribunal to determine whether she suffered any detriment or disadvantage and if so, what the appropriate award for injury to feelings should be.
For Employers Handling Flexible Working Requests
This case is a warning to employers that reversing a final decision to impose a discriminatory requirement will not necessarily erase disadvantage or detriment and may still leave the employer open to liability for discrimination.
Practically speaking, it is rare that an employee in such circumstances will bring a discrimination claim where they are ultimately successful with their flexible working request. It is nevertheless important that employers consider flexible requests very carefully from the outset and where there are reservations about a request, a better option may be to allow it on a trial basis. If it proves to be unworkable, it will then be possible for you to evidence as to why the arrangement is not sustainable on a permanent basis. This will put you in a better position to defend any claims that may follow.
For more information and advice on flexible work requests and discrimination, please contact our experienced employment team or email us at info@witansolicitor.co.uk.
