The Claimant was employed as a manager and contracted to work 39 hours per week over five days. She was on maternity leave and before returning to work submitted a flexible working request to reduce her days to three fixed days per week.
This request was refused by her employer and the Claimant appealed. On appeal the Employer (Lacoste) offered the Claimant an alternative of four days per week but on the basis she would be fully flexible on when the days were, so they were not fixed. Due to childcare reasons this was not possible.
As a result the Claimant instructed a solicitor who wrote to the Employer asking for them to reconsider otherwise the Claimant would have no choice but to resign. The Employer responded to this letter by reversing its original decision and deciding to give the Claimant the hours she originally requested.
The Claimant raised a claim for indirect sex discrimination.
Indirect sex discrimination occurs where:
- An employer (A) applies to B a provision, criterion or practice (PCP).
- A applies (or would apply) that PCP to persons not of the same sex as B.
- The PCP puts or would put persons of B’s sex at a particular disadvantage.
- The PCP puts or would put B at that disadvantage.
- A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
A must not discriminate against B by subjecting B to a detriment (section 39, EqA 2010). “Detriment” is construed widely; a worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged.
The Claimant asserted a PCP that her employer had required fully flexible working.
The Employment Tribunal found that as she was on leave at the time it was refused, she was not “disadvantaged” by the decision. Ms Glover appealed against that decision to the Employment Appeal Tribunal.
The Employment Appeal Tribunal found she was disadvantaged at the point Lacoste rejected her flexible working appeal. It did not matter that she was still on leave at that time.
To summarise, once an application for flexible working (eg to work on a limited number of days only each week) is determined, following an appeal process, the provision, criterion or practice (PCP) (eg to be fully flexible as to working days) has been applied, and may therefore have put the applicant at a disadvantage, for the purposes of an indirect discrimination claim. That is the case even if the applicant is away from work when the request is made and never returns to work. It remains the case even if the employer subsequently agrees to the terms of the original application, according to the EAT.