Challenging discriminatory refusals of flexible working requests

If a flexible working request made while an employee is on maternity leave is refused, but then approved before they return from leave, did the employee suffer discrimination?

Ms Glover worked in a retail environment. While on maternity leave Ms Glover made a flexible working request to work part time and on fixed days each week, which would apply on her return to work. The request was refused on the grounds that managerial staff must work full-time and be fully flexible. Ms Glover appealed the refusal and was offered a compromise. Ms Glover then instructed solicitors who asked for Lacoste’s refusal to be reconsidered. Lacoste then granted Ms Glover flexible working on the original terms requested. Ms Glover claimed that her employer’s requirement that she work full time and be fully flexible in her days of work amounted to indirect sex discrimination. The Tribunal determined that Ms Glover had not been discriminated against because she had not been placed at a disadvantage by Lacoste’s requirements. This is because she had been off work and therefore not required to work full time / flexibly. Ms Glover brought an appeal in the Employment Appeal Tribunal challenging this finding.

We work to make sure employers understand their legal duties and how to improve equality of opportunity. This includes addressing gaps in employment rates and pay for different protected characteristic groups. We also work to address the restriction and / or limiting of family friendly rights for men and women such as right to flexible working and to tackle discrimination against women who are pregnant or on maternity leave, or for other family related reasons.

We provided funding for this case when it reached the Employment Appeal Tribunal. Ms Glover was referred to us by Pregnant then Screwed.

The Employment Appeal Tribunal decided that the rejection of a flexible working request on appeal resulted in the “application” of a potentially discriminatory working pattern on the employee. This was the case even though the employer later changed its mind and the employee never had to work under the unwanted working pattern.

The judgment in this case clarifies that women on maternity leave whose flexible working applications are refused can bring indirect sex discrimination claims about such a refusal, even if they are still on leave when the decision is made and never return to work on the new working pattern. This will help women challenge the discriminatory refusal of flexible working requests.