The recent case of Thompson v Scancrown Ltd, trading as Manors, is a salutary warning to employers and demonstrates how important it is for organisations to consider flexible working requests carefully.
In a decision that has received widespread media attention, an employment tribunal has found that the refusal of Alice Thompson’s request to reduce her working hours after her maternity leave constituted unlawful discrimination and has awarded her just under £185,000.
If you would like to know more about the legal requirements relating to flexible working requests, we have produced a webinar which provides a practical guide and which you can access for free, on demand.
Facts and background
Alice Thompson was employed as a sales manager by the respondent company, a small independent estate agent based in Marylebone, London. She began working for the business in October 2016 and was considered highly competent. For instance, in the spring of 2018 Paul Sellar (the owner of the business) said “down to you, the office is doing well”.
The respondent had one office and around 10 employees, covering both sales and lettings. Many of the business’s customers lived overseas and it was dependent on good local relationships and long-term personal contacts.
Ms Thompson’s annual salary (including commission) was circa £120,000, and her contractual hours were 9:00 a.m. – 6:00 p.m. on Monday to Friday.
It is clear from the employment tribunal’s judgment that Mr Sellars attached significant importance to timekeeping. Ms Thompson and the lettings manager were required to record when staff arrived. If they were more than 20 minutes late for work their pay was docked.
In May 2018 Ms Thompson announced her pregnancy. She went on maternity leave from October 2018 to October 2019. On her return to work, she made an application for flexible working, and submitted a grievance about what she perceived to be mistreatment in the lead up to and during her pregnancy.
Flexible working request
Ms Thompson had requested the following flexible working arrangements: (1) reducing her working days to 4 days per week; and (2) reducing her working hours, so that she finished at 5:00 p.m. (instead of 6:00 p.m.) so that she could pick up her young daughter from nursery.
The company’s initial response to the flexible working request
On 25 November 2019, Ms Thompson was sent a letter turning down her request:
“I have considered your request for a new flexible working pattern carefully. I regret to inform you that, on this occasion, we are unable to accommodate your request for the following business reasons: (1) the burden of additional costs; (2) detrimental effect on ability to meet customer demand; (3) inability to reorganise work among existing staff; (4) inability to recruit additional staff; (5) planned structural change.”
The letter added:
“… as you know, building and maintaining client relationships is an essential feature of sales. For continuity purposes, our clients expect consistency in the sales manager they deal with, which is a further reason why it would not be suitable to recruit additional staff to cover the proposed hours.”
Ms Thompson submitted an appeal on 28 November 2019. She complained that none of the grounds relied on by the company had been explained. In particular, she contended:
- given that the business had a new assistant sales manager, there was no burden of additional costs or detriment in terms of meeting customer demand;
- there was no barrier to re-arranging work among existing staff; and
- there was no need to hire additional staff.
As to consistency in dealing with clients, Ms Thompson contended that the business had always encouraged teamwork in sales – information was shared, and customers knew the whole team. She pointed out that the ACAS guidance on flexible working requests provided for discussion, but there had been no discussion or clarification. The response from the company was simply “no”, without explanation.
Ms Thompson submitted an appeal and an appeal hearing was held on 5 December 2019 (conducted by a Mr Hall – a consultant from Peninsula). At the appeal hearing Ms Thompson explained the nature of her job and set out in some detail how she envisaged the flexible working arrangements would work. Mr Hall then obtained the views of Paul Sellar, though (as the tribunal noted) it is not apparent from his report or Mr Sellar’s witness statement whether this was in writing, by telephone, or at a face-to-face meeting. Mr Hall did not put Mr Sellar’s views to Ms Thompson.
Mr Hall produced an appeal outcome on 13 December 2019.
- On structural change, he said that Mr Sellar could not state what was planned because he had yet to make an announcement to the staff.
- He accepted Mr Sellar’s concerns that there would be implications for the business in terms of work allocation and cost. In particular, about 30% of Ms Thompson’s working time would need to be covered by others, which would result in the cost of additional commission to staff, and that staff covering Ms Thompson’s responsibilities would not be able to carry on their own work during that time.
- Mr Hall accepted Mr Sellar’s view that between 5:00 p.m. and 6:00 p.m. potential customers might be lost because the staff available could not answer their queries adequately. Ms Thompson had volunteered to be available by phone but there was no guarantee that she could respond. It was not practical to recruit a part-time replacement for Ms Thompson.
- Mr Hall also accepted Mr Sellar’s view that if Ms Thompson were absent, he anticipated there would be fewer instructions from potential clients.
Ms Thompson resigned and submitted claims for: (1) pregnancy and maternity discrimination, (2) harassment related to sex, (3) indirect sex discrimination in respect of the flexible working request, (4) unfair dismissal, and (5) unlawful deduction of commission payments from wages.
The only claim that succeeded was the claim of indirect sex discrimination in respect of the flexible working request.
The employment tribunal’s decision
The employment tribunal found that the requirement to work from 9am – 6pm, Monday to Friday, constituted indirect sex discrimination.
Although this policy applied to all sales managers irrespective of their sex, the employment tribunal concluded that this put women with children at a substantial disadvantage. The employment tribunal accepted that the difference in primary responsibility for childcare between the sexes is not as obvious as it was a generation ago; however a 2018 national survey of over 2,000 adults had shown that 64% of mothers, compared to 36% of fathers, are the primary carer for their children. The tribunal emphasised that the difference was not negligible.
The employment tribunal also found that the requirement put Ms Thompson a disadvantage – a 6:00 p.m. finish meant that she would not be able to pick up her daughter from nursery, which shut at the same time.
The central feature of this case – as with most sex discrimination claims arising from flexible working requests – was whether the decision was justified.
This involves a two-stage approach:
- A tribunal will first consider whether the organisation’s provision, criterion or practice (PCP) – in this case the respondent’s fixed working patterns – were a means of achieving a legitimate aim.
- If so, a tribunal will go on to consider whether the PCP was a proportionate means of achieving a legitimate aim. It is normally easy for an employer to establish a legitimate aim. Where employers tend to fail, is on the second question of proportionality.
That is precisely what happened in this case. The tribunal concluded that the respondent company had a legitimate aim. However, it concluded that the refusal was not a proportionate means of achieving this aim. Although the respondent’s concern to meet customer demand carried some weight (as customers may want instant answers and become frustrated if other staff could not answer questions), the tribunal found that it was “not insuperable”. Ms Thompson’s maternity cover had been carrying out the role of sales manager for over a year and was happy to stay on at the team. Although Ms Thompson’s maternity cover had reverted to a different role, it was hard to see why she could not cover Ms Thompson’s role on one day a week. The tribunal also found that the sales team was small enough to know and keep abreast of all potential customers and sales.
The tribunal stated that it understood the respondent’s caution about changing the makeup of a team that worked, but it did not follow that the difficulty in making the changes Ms Thompson requested outweighed the discriminatory impact on Ms Thompson of refusing her request.
What does this mean for employers?
The judgment demonstrates that employers considering flexible working requests should tread extremely carefully, as the cost of getting it wrong can be very significant.
Where the flexible working request is linked to a characteristic that is protected under the Equality Act 2010 (such as a request brought by a returning mother or a disabled employee), it is not sufficient for employers to simply refuse the request on the basis of one of the legitimate grounds listed in the Employment Rights Act 1996. Employers must carefully consider ways that they can accommodate the employee’s request whilst allaying any legitimate business concerns. For example, the employer may adopt the requested changes on an initial trial period, rather than rejecting the request, where the employer is unsure on the impact the requested arrangements will have on the business.
Bates Wells regularly acts for employers and employees seeking advice on how to properly handle a flexible working request, and our employment team has recently delivered a webinar discussing how to approach flexible working requests which you can download on demand.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of September 13, 2021.