The perils of managing flexible working requests

Posted on March 9th, 2023

In Ms M Glover v Lacoste UK Ltd, the employment appeal tribunal (EAT) considered whether the employment tribunal (ET) had erred in law by finding that because the claimant did not ultimately work a fully flexible part-time working pattern, then a provision, criterion or practice (PCP) did not apply.

A provision, criterion or practice (PCP) is a legal term used in indirect discrimination claims. In essence it means that an employee must be able to prove that the PCP puts them at a disadvantage.

Ms Glover was employed at Lacoste in Nottingham as an assistant store manager. She worked full-time 39 hours per week, five days per week flexibly, as set out in a rota.

Flexible working request rejected

She started maternity leave on 3 March 2020 and in November 2020 she made a request to work three days a week on set days. The company’s HR consultant met with her in March 2021 and her request was rejected by letter a couple of days later.

Appeal upheld in part

Ms Glover appealed the decision. The appeal was upheld in part by a letter dated 7 April 2021, in which she was offered part-time work four days a week, to be worked flexibly on any day of the week.

Flexible working request granted after threat of claiming constructive dismissal

Solicitors instructed by Ms Glover subsequently wrote to her employer asking that her request be reconsidered, otherwise she would have no option other than to resign and claim constructive dismissal. Her employer responded by agreeing to her original flexible working request in full. Ms Glover returned to work on 25 April 2021.

Claim for indirect sex discrimination plus PCPs

Just over a week after her return to work, Ms Glover submitted a claim for indirect sex discrimination and the day before the ET hearing date, she applied to amend the claim form to assert PCPs that included a requirement for flexible working.

ET findings

The ET concluded that a PCP requesting fully flexible working had not been applied because Ms Glover was not in work at the time, therefore she had not suffered a disadvantage.

It also held that, if the PCP had been applied, the employer would not have had a justifiable reason for applying it.

EAT findings

Ms Glover appealed, asserting that previous case law had been incorrectly applied by the ET. The case went to an EAT and was fully funded by the Equality and Human Rights Commission.

The EAT concluded that the ET had misinterpreted previous case law and found that Ms Glover was disadvantaged at the point her employer refused her flexible working appeal. It stated that it did not matter that she was still on maternity leave at that time.

Summary and advice

This case demonstrates that an employee who submits a flexible working request when they are on leave does not prevent them from bringing an indirect discrimination claim if the request is refused, or partially refused. More significantly, any disadvantage from that initial refusal cannot later be ‘cured’. Therefore, employers need to be extremely mindful during every stage of a flexible working request process.

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