Is flexible working refusal discriminatory?

I am currently on maternity leave and have begun to discuss my return to work with my employer. I work for a small company and they have not had any pregnant employees for some years.

I worked full time in the office pre-Covid and then from home for over a year until my maternity leave started.

I have put in a written request to work a four-day week with three days working at home.

My employer has said that they would like me to return full time and work in the office more than one day a week.

Working full time and commuting would not be possible due to the opening hours of our childcare providers.

Two of my male colleagues have previously been allowed to work from home four days a week and come into the office once a week due to their decision to move away from the area. This was pre-Covid.

My employer is concerned that the terms they give me on my return to work will set a precedent for any future working mums they employ, but I feel a precedent has already been set when they allowed my male colleagues to work flexibly.

Do I have a case for discrimination? Or indirect discrimination as I would be unable to return full time due to childcare care responsibilities?

I have worked for my employer for several years but have never seen or signed a contract so I don’t know where I stand.

judge's gavel against a block titled employment

 

Firstly, you need not be concerned about not having a written employment contract when it comes to determining whether you have been discriminated against and asserting your rights under the Equality Act 2010. The fact that you have never been provided with an employment contract does not impact your right not to be discriminated against due to pregnancy, maternity, your sex or any other “protected characteristic”. Any worker, employee, agency worker or job applicant is protected against discrimination under the Equality Act 2010.

You have worked for your employer for seven years and you are therefore highly likely to be considered as working under an implied or oral contract of employment. However, your employer is legally obliged to give you a written statement of your terms and conditions of employment and you should therefore request these as soon as possible. Their failure to provide so could result in an additional award of compensation should you issue a claim against them in the Employment Tribunal (for example, for discrimination).

It is unclear whether you have submitted your request to change your working pattern informally or via a statutory flexible working request. If the request was submitted informally, you should re-submit your request as a statutory flexible working request; you have a legal right to do this. Your employer has a legal duty to consider your request in a reasonable manner and provide a response within three months (or longer with your agreement). Further, your employer must not discriminate against you when making its decision. Your request can only be refused for one of the following business reasons:

  • planned structural changes to the workforce
  • the burden of additional costs that could damage the business
  • detrimental effect on the ability to meet customer demand
  • inability to reorganise the work among existing staff
  • inability to recruit additional staff to do the additional work
  • effect on quality and/or performance
  • a lack of work to do during the proposed working times

If your employer refuses your request, they must explain why this reasoning applies to your circumstances.

Discrimination

From the information you have provided, and if your employer rejects a formal working request without an acceptable reason or without justification, you may have grounds to issue the following claims:

  • Direct sex discrimination: on the basis that your employer has granted a similar working pattern to male employees in the past, but has refused to either grant or consider your request without any justification, explanation or discussing alternative options with you.
  • Indirect sex discrimination in respect of your employer’s refusal to grant or consider your flexible working request, if you can show that your employer’s policy or practice indirectly discriminates against women and cannot be objectively justified.
  • A claim under Section 80H of the Employment Rights Act 1996 in respect of your statutory right to request flexible working, depending on how your request is or has been handled.
  • A claim for additional compensation if your employer fails to provide you with a written statement of your terms and conditions of employment.
  • If you consider that your position with your employer has become untenable because your trust and confidence in them has irretrievably broken down, you may have grounds to resign and claim constructive unfair dismissal.

Depending on the events that have taken place to date, you may also be able to issue a discrimination claim on the grounds of pregnancy and/or maternity. However, these claims only arise in particular circumstances during a specified timeframe (the “protected period”), so I would advise discussing this with an employment law specialist to determine whether these would apply.

Please note that time limits for Employment Tribunal claims are extremely strict. You must contact ACAS within the time limit to commence Early Conciliation, which is a mandatory step before a claim is issued.

I would strongly recommend that you take further and more detailed legal advice as soon as possible, particularly before issuing a claim.

*Sophie Wahba is a solicitor in the employment law team at Wright Hassall. Sophie advises both individuals and businesses on a range of contentious and non-contentious employment law issues. Sophie always takes a pragmatic, transparent and forward-thinking approach to achieve the best possible outcome for her clients.



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