A Lesson to be Learned when considering a Request for Flexible Working Conditions – Particularly in Cases that May Involve Discrimination

I have occasionally been asked why I opted to undertake the module on Employment Tribunal Practice & Procedure; given that it is highly unlikely that I would ever represent a client in a Tribunal.?However, the case that I am about to relate provides an indication of why having an understanding of how tribunals work can often save clients from having to pay out compensation amounting to a six-figure sum.?In Mrs A Thompson v Scancrown Ltd the claimant was awarded ￡184,961 after a case involving indirect discrimination had been found in favour her favour.?

Mrs Thompson had been employed as the Sales Manager in a small company, that acted as both an estate and lettings agent with many of the cliental coming from overseas, and was paid a basic salary with further payments of commission and a bonus – the latter dependant upon meeting specific targets.?When Mrs Thompson went on maternity leave an Assistant Sales Manager was employed to cover for her absence.?It was intended that the Assistant Manager would continue to be employed in a different role, that of a Sales Negotiator (adding a second Sales Negotiator post), upon the return of Mrs Thompson from maternity leave.?Mrs Thompson was contracted to work Monday to Friday from 9am to 6pm.?Prior to her return from maternity leave, Mrs Thompson asked if she could reduce her hours so as to finish at 5pm so that she could pick up her child from the nursery (as this closed at 6pm and was some way away from her place of work).?A further request was made to be able to work a four-day week.

The request for flexible working was submitted in writing but was refused.?At appeal the employer put forward the following reasons for refusing her request:

·????????There would be a burden of additional costs in having to pay someone to cover her post due to the reduction of her hours.

·????????There would be a detriment in the meeting of customer demand.

·????????The inability to reorganise staffing to provide cover from the existing staff.

·????????The inability (cost) to recruit additional staff.

·????????That the employer was looking at a possible restructuring of the organisation (but did not give any further explanation as he had not mentioned this to other members of staff).?It would appear, from the case notes, that this had been brought about by a downturn in business due to a combination of Brexit and the COVID Pandemic.

This was also put forward, at the Employment Tribunal, as the reasons for refusing the request for flexible working.?Despite Mrs Thompson pointing out that there would be no extra cost due to the employment of the Assistant Sales Manager; as information was always shared between staff, there would be no inconsistency when dealing with customers; that the customers knew all the team members; the answer was still ‘no’.?This was also highlighted when the case came before the Employment Judge.?

At the Tribunal it was accepted that a survey had shown that there were double the number of women, as opposed to men, that are primary carers of their children.?This puts women at a particular disadvantage and so the action of the employer was found to be discriminatory.?It was further found that the discrimination had been brought about by the provision, criterion or practice (PCP) of insisting that employees worked five days per week from 9am to 6pm thereby not allowing for childcare.?Furthermore, the Tribunal Judge decided that the PCP was not a proportionate means of achieving the aims, of ensuring consistency and continuity in client relationships, that had been put forward by the employer.?

The employer, despite the downturn in business, had not investigated the option of the newly appointed Sales Negotiator covering the reduction in hours requested by the Sales Manager; even though the Sales Negotiator already had experience in covering for the Sales Manager.?No account had been taken of utilising the claimant’s reduction in salary and commission to cover this cost.?Whilst the reallocation of commission might be difficult to work out, the Employment Judge felt that it would not be insuperable (as the employer had argued).?I have to say that this case did surprise me.?

It was a large financial loss to the employer who was, obviously, already experiencing problems due to a downturn in business.?If the employer was receiving ‘professional’ guidance with regard to the request, by the Sales Manager, for flexible working, then I am surprised that the employer was not advised to look at the option of utilising the Sales Negotiator to cover the reduction of hours brought about by this request – despite the apparent difficulty in apportioning sales commission between the two employees.?Surely this could have been determined through negotiation, by the employer, with the parties concerned.?

As an aside:?The compensation comprised Loss of Earning; Loss of Pension Contributions; Injury to Feelings and Interest.?The compensation was then grossed-up for tax purposes.??