Flexible Work Requests and Sex Discrimination
The Employment Appeal Tribunal (EAT) has found that the outcome of a flexible work appeal caused an employee disadvantage or detriment for the purposes of her indirect sex discrimination claim.
What Was the Background to the Case?
In Glover v Lacoste, Ms Glover was an assistant store manager at Lacoste UK. She worked five days a week flexibly according to a rota. During Ms Glover's maternity leave, she made a flexible work request. She asked to work three days a week. Ms Glover's request was unsuccessful. Following an appeal, Lacoste instead said she would work part-time across four days of the week. These four days were to be worked on a 'fully flexible' basis, which meant Ms Glover could be required to work on any day of the week, including weekends. Ms Glover said it would be impossible to arrange childcare on the basis of this working pattern.
Ms Glover was furloughed at the end of her maternity leave. During her absence, she instructed solicitors and negotiated a return to work on the basis of her original flexible work request. She never therefore worked on the four day 'fully flexible' basis Lacoste had originally offered. She then lodged Tribunal proceedings including a claim for indirect sex discrimination.
What Was the Outcome of the Claim?
The Tribunal dismissed Ms Glover's claim. It considered that as Lacoste had not in practice ever required Ms Glover to work on a fully flexible basis, that she had not suffered a disadvantage.
Ms Glover appealed successfully to the EAT. The EAT held that the flexible working appeal outcome did count as the application of a 'provision, criterion or practice' (PCP) for the purposes of indirect sex discrimination. It did not matter that Ms Glover had never actually worked under the fully flexible arrangement.
Having established that the appeal outcome was a PCP, the EAT has remitted the claim to a new Tribunal to consider whether Ms Glover suffered disadvantage or detriment as a result of the appeal outcome. In remitting the claim, the EAT has also commented that it would be hard to see how the appeal outcome would not have caused Ms Glover to suffer disadvantage or detriment, given that she had to consider resigning from her job.
What Can Employers Learn from this Decision?
This decision shows that it is not possible for an employer to erase disadvantage or detriment by changing its mind about a flexible work request after the event. It is common for employees who are on maternity or other family-related leave to submit a flexible work request before their return to work. It is possible for the outcome of that process to cause disadvantage or detriment even if the employee does not return to work.