Can my former employer refuse to interview me based on their inflexibility in the past?

I was in my first job from graduation and consistently received very good performance reviews over the years. Then I had my first son and found it hard to go back to full-time employment. After much negotiation, and much bad will from my employer, I was allowed to work four days a week. I then had a second child and when I went back to work I was really struggling emotionally. My employer consistently refused to consider my informal request to work three days a week for 5 months and I handed my notice in. I was given legal advice at the time that an employment tribunal would only consider my case if I’d exhausted all the grievance processes prior to leaving my job. Now my younger child is due to start school and I emailed an old manager to ask if there were any job opportunities. He told me that he would put me on the list for future opportunities, but there was nothing. However, the company are advertising for a position directly equivalent to my old role. Assuming I applied directly for the role and was not considered, i.e. not even invited in for an interview, would I be right in suspecting I was being discriminated against based on my former informal complaints?

Coffee, an iPhone and a small blackboard saying 'back to work'


I understand that your query is that effectively if you apply for a job with your previous employer and they reject your application, is there any scope for you to allege that you have been discriminated against (presumably because of your sex and on the basis that you previously made informal flexible working requests that were rejected)?

Whilst the Equality Act 2020 provides that an employer must not discriminate against or victimise a person by not offering employment, there may be evidential issues in establishing the same. In particular, the difficulty will be establishing a causal link between any decision to reject your application and your historic flexible working requests.

If you submit your application and it is rejected, it would be worth you asking the organisation for written reasons for their decision and feedback on your application.  You could, of course, refer in this request to your previous good performance reviews and that there seems to be no plausible explanation for why the organisation would not take your application forward. Depending on the response (and the reasons given for any rejection for your application), you could also consider making a data subject access request to the organisation to obtain copies of your personnel file and any other personal data that the organisation holds about you (to include any documents/internal communications about your job application). Any documents provided in response to his request may throw up information that may assist in demonstrating the reasons any application was rejected.

*Sally Tomlinson has assisted with this reply.

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