Flexible working requests: failure to consider impact of menopause discriminated against female employee

In Johnson v Bronzeshield Lifting Ltd, a tribunal had to decide whether an employer had discriminated against a long-standing employee by turning down her request to adjust her work pattern to help her to cope with her menopausal symptoms and caring responsibilities.

Facts

Ms Johnson worked as an administrator for a small crane hire company since 1995. In 2018 she developed menopausal symptoms including low mood, anxiety, low self-esteem and brain fog. It affected her resilience and made it harder for her to manage the usual stresses of daily life. Her symptoms coincided with other changes in her life - including having to care for her parents and another relative. 

To cope with what she referred to as an “old lady's disease” she asked to change her contractual hours so that she had Wednesday's off and worked an hour longer on the other days. Her employers agreed to the arrangement on a 10-month trial period. Shortly before the trial was due to end Ms Johnson made a formal request to change her hours again. In particular, she asked to take Fridays rather than Wednesdays off and to take her lunchbreak at the end of the working day to allow her to leave early. She explained that she needed these changes to help with her elderly parents and to cope with “menopause issues”. 

A meeting took place to discuss this between Ms Johnson, a company director and an external HR consultant. The company said that Friday was its busiest day and that it was required by law to give her a break after six hours, so couldn't agree to her taking her break at the end of the day. It turned down her request and Ms Johnson resigned on notice. Her employers offered her a “cooling down” period to give her time to reflect on her decision and suggested that she appeal against the company's rejection of her flexible working application. 

Ms Johnson wrote a lengthy appeal letter, which was ultimately rejected. She brought claims in the employment tribunal alleging that she had been discriminated against because of her menopause (which she argued was a disability) and that she had been constructively dismissed.

Decision

The company accepted that Ms Johnson's symptoms amounted to a disability. 

The tribunal found that Ms Johnson had mentioned the menopause in her flexible working application but did not explain why she needed the work pattern she had requested to cope with it. In evidence she explained that she found the traffic harder to deal with because of her symptoms, and wanted to avoid Friday because it was particularly bad on that day. She also mentioned that she had no back up on Fridays to support her elderly parents. 

The director completely ignored what she'd said about the menopause when determining her application. In evidence, he said that was because he did not understand it and wouldn't be able to. However, he admitted that if Ms Johson had presented with a different disability (such as cancer) he would have asked her what support she needed when considering a request to work the same pattern. She therefore succeeded with her first claim of direct disability discrimination in respect of the way the company approached her request.

However, the decision to turn down her request was not direct disability discrimination. That was because the company's decision had nothing to do with her disability which it had ignored. It needed an administrator to work on Fridays and would have refused a request from someone asking for the same arrangement who didn't have Ms Johnson's disability.  

It also rejected her claim of sex discrimination because there was no evidence that the company had treated her less favourably because she was a woman.

She did, however, succeed with her claim of constructive unfair dismissal. The tribunal found that by failing to consider the impact of Ms Johnson's menopause, the company had breached the implied term of trust and confidence. She had resigned promptly in response to the company's repudiatory breach.

Tips when dealing with flexible working requests

1. There is no legal duty on employees to tell you why they want to change their working pattern under the statutory ‘right to request’ procedure and, in most cases, you don't need to know. If an employee wants Wednesday afternoon off to go wild swimming, for example, all you need to do is consider whether you can agree to this. If you start by considering how deserving the request is, you could get into legal difficulties. 
2. If the employee has a disability, you have additional responsibilities under the Equality Act. You will need to find out why the work pattern they want will help them cope with their symptoms (or treatment) and, separately, to consider whether what they are asking for is a reasonable adjustment. If it is, you should agree to it. You'll need to evaluate whether it is working, both for you and the employee via regular meetings. Note: As the new Acas Code of Practice on Flexible Working makes clear, the legal obligation to make reasonable adjustments is separate to the legal obligation to consider a request for flexible working.
3. If the employee hasn't expressly told you about a medical condition, don't ignore any hints they make. Even an oblique reference to their health may be enough to put you on notice that they may have a disability which then triggers the duty to make reasonable adjustments. 
4.  Consider whether rejecting a request will expose your organisation to claims of indirect discrimination. Women still bear the greater burden of childcare responsibilities than men and this can limit their ability to work certain hours. The childcare disparity has been accepted by courts at all levels for many years and, if relevant, must be taken into account: Dobson v North Cumbria Integrated Care NHS Foundation Trust. A relatively recent tribunal has also accepted that women are more likely to be the primary carers for elderly and/or disabled parents: Monti v Marks and Spencer Group Plc. If you impose a provision, criteria or practice (PCP) that, for example, places women at a substantial disadvantage compared to men because of their caring responsibilities, you will have to justify your approach.

Ms Johnson wasn't represented and didn't argue that her employer should have agreed to her request as a reasonable adjustment of her disability, or that its requirement for her to work five days a week in the office (and/or specifically Fridays) indirectly discriminated against her as a woman with caring responsibilities. Those arguments weren't, therefore, considered.

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