By Céline Winham and Deborah Casale,

The Briefing examines recent sex discrimination case law arising from flexible and hybrid working arrangements and considers whether we are likely to see an increase in such claims.

Introduction

Flexible working requests (FWRs) and the law in relation to them has not changed post-pandemic. It is relatively easy for employers to reject an application for flexible working under the statutory scheme if it can rely on one or more of the specified statutory grounds. These include: approving the FWR would result in a detrimental impact on performance or quality, an inability to meet customer demand or a burden of additional costs, amongst others.

The reasons for refusing FWRs are now potentially harder to establish by employers, given that many office-based employees have successfully worked flexibly during the pandemic. Further, with the prevalence of flexible, hybrid and home working arrangements, we are starting to see more women bringing discrimination claims to achieve the result they want.

Proposed changes to FWRs

At the last general election, the Government included a manifesto pledge to make flexible working the default position unless employers have a 'good reason' not to. In 2019, it launched the Flexible Working Taskforce to encourage employers to advertise jobs at all levels and grades as flexible. Then, last September, it published a consultation and is now analysing feedback.

One thing is clear: the Government has rowed back from its earlier pledge and flexible working will not become the default. Instead, it is considering giving employees the right to ask to work flexibly from day one; reviewing the eight business grounds and requiring employers to consider alternatives as well as other minor changes. These proposals amount to little more than tinkering around the edges and will not make it any easier for the vast majority of employees to achieve the flexible working arrangements they require.

Dobson v North Cumbria Integrated Care

Mrs Dobson was a community nurse. She had three children, two of whom are disabled. Owing to her childcare responsibilities, she had, for a number of years, worked only on Wednesdays and Thursdays. In 2016, her employer issued a new rostering policy and asked her to work flexibly to include working an occasional weekend no more than once a month. Ms Dobson said that she could not work flexibly and was ultimately dismissed for refusing to accept the new working pattern.

At first instance, the employment tribunal did not find indirect discrimination partly because she had not put forward any evidence to show that the policy put women at a particular disadvantage because of their childcaring responsibilities. The EAT allowed Mrs Dobson’s appeal and the case was remitted back to the tribunal.

The EAT, hearing the case in February 2021, confirmed that the ‘childcare disparity’ still exists. Despite commentary that we may have moved towards more equal childcare and other caring duties between men and women throughout the pandemic, the EAT held that because of their primary childcare responsibilities, women are less likely to be able to accommodate certain working patterns than men.

The EAT in Dobson determined that the childcare disparity should be considered when deciding whether women are likely to be disadvantaged by requirements to adhere to particular working patters set by an employer. The childcare disparity is likely to be particularly relevant where women are asked to work unpredictable hours, or hours outside the standard working day.

Follows v Nationwide

Mrs Follows was employed under a home-working contract but did, in fact, work in the office two to three days a week. Her employer decided that the role should no longer be done from home at all, which Mrs Follows could not accommodate due to her caring responsibilities for her disabled mother.

The employment tribunal found it was indirectly discriminatory to require an employee to give up her home-working arrangements where she was caring for her disabled mother as more women than men are primarily responsible for caring responsibilities at home for elderly relatives. The requirement to give up home working therefore put women, including Mrs Follows, at a particular disadvantage.

This was a first instance decision and although does not set a precedent it does show that tribunals are continuing to accept that the default position is more women than men have caring responsibilities. It was noted in the judgment that 58% of carers are female, as opposed to 42% male.

Mrs A Thompson v Scancrown Ltd t/a Manors

The employment tribunal decision in Thompson hit the national press in September 2021 (most notably due to the compensation awarded, which neared £200,000) and involved the estate agent employer being held to have indirectly discriminated against Ms Thompson on the ground of sex for refusing her FWR.

Ms Thompson had made a FWR following her return from maternity leave to reduce her hours for childcare reasons and to enable her to leave at 5.00pm instead of her normal 6.00pm in order to collect her child from nursery.

The tribunal found that refusing to allow Mrs Thompson to finish work at 5.00pm, as nurseries are usually closed by 6.00pm, put her at a particular disadvantage. Again, this is a first instance decision and therefore not binding.

It probably did not help the respondent’s case that the company’s director allegedly said at a work social event: ‘I thought, for f***’s sake, why is she pregnant when we are doing so well? I was warned about employing a married woman of her age.’

Allen v Primark Stores Ltd

The most recent of this string of indirect sex discrimination cases is Allen, decided by the employment tribunal in April this year. Miss Allen was a manager at Primark who, upon her return from maternity leave, made a FWR to change her contractual hours due to childcare responsibilities as a single mother. These had required her to guarantee her availability to work late on a Thursday.

At first instance, the tribunal determined that three out of the five store managers in the pool of comparison were disadvantaged by the late Thursday working requirement and two of these were men. It therefore did not uphold a finding of indirect sex discrimination.

On appeal, however, the EAT decided that the pool of comparison was wrong because the other two male managers were not required to guarantee their availability for late shifts on Thursdays; they only worked it on a voluntary basis. These male managers therefore did not have the same contractual requirements as Miss Allen and therefore could not be said to be in the same, or not materially similar, circumstances. The case was remitted to the tribunal.

Comment

Various research and surveys including by McKinsey, the CIPD, the ONS and the TUC are reporting that homeworking and hybrid working have increased substantially since the pandemic. The TUC published statistics in May 2022 which showed that regular homeworking by UK workers has tripled, rising from 6.8% in 2019, to 12.1% in 2020, to 22.4% in 2021. The figures show a permanent increase in homeworking, with 91% of those who worked from home during the pandemic wanting to continue working remotely some of the time.

Dobson confirms that tribunals should take judicial notice of the ‘childcare disparity’, which makes it easier for women to establish group disadvantage. Women are more likely to find it difficult to work certain hours (for example, nights) or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities and following this decision, they will not have to provide their own supporting evidence when pursuing claims of indirect sex discrimination, in circumstances where factors relating to childcare put them at a disadvantage.

However, that does not mean that a tribunal will find that a particular PCP does, in fact, discriminate against women. The EAT noted in Dobson that flexible working arrangements can be helpful to working women with childcare and other caring responsibilities. For example, if a requirement to work flexibly requires working any period of eight hours within a fixed window, or involves some other arrangement that might not necessarily be more difficult for those with childcare or other caring responsibilities, then it would be open to a tribunal to conclude that the group disadvantage is not made out. The EAT also made it clear that a PCP can still result in disadvantage even when compliance is possible with difficulty or with additional arrangements having to be made.

Dobson is likely to remain valid for now. However, it will be interesting to see whether the move towards greater flexible working for both sexes will result in actual change where the distribution of time spent looking after children and caring for other family members is more evenly distributed between the sexes. We are certainly not there yet. We may see this change in the future, but considering the rate of progress on equal pay, as a comparative area, we expect this to be slow.

It’s worth mentioning that Dobson does not alter the legal position regarding objective justification and it remains open to employers to use s.19 EqA to justify refusing a FWR that may be indirectly discriminatory on the grounds of sex by establishing that it is a proportionate means of achieving a legitimate aim.

With flexible, hybrid and home working arrangements having become commonplace over the pandemic, we anticipate that indirect sex discrimination claims from working women with caring responsibilities may increase. The pandemic demonstrated that, for many people, work can be done anywhere and at any time and doesn’t have to be shoe-horned into the typical nine to five day.

Employers are still navigating the ‘new normal’ and will continue to face challenges around these issues. Of course, an indirect sex discrimination claim is only one mechanism for challenging an employer’s approach to flexible working arrangements and those advising employees may also want to consider whether claims for harassment, victimisation, failure to make reasonable adjustments and/or constructive unfair dismissal will apply in the circumstances.

This article first appeared in the Employment Lawyers Association (ELA) Briefing in July 2022.