Addressing flexible working requests

In the case of Ms Marie Johnson v Bronzeshield Lifting Ltd, the employment tribunal (ET) considered claims of disability discrimination, sex discrimination and constructive unfair dismissal in relation to a flexible working request by an employee with menopausal symptoms.

Background

Ms Johnson had been employed by Bronzeshield Lifting Ltd since 1995 as an office administrator. In 2018, she developed severe menopausal symptoms, which included:

• Low mood and volatile emotions.
• Anxiety and low self-esteem.
• Sleep problems and brain fog.

These symptoms had a significant impact on her ability to work, so she requested flexible working arrangements to better manage her symptoms and caring responsibilities.

Facts of the case

By 2021, Ms Johnson was working a 32.5 hour week over five days. In August 2021, she requested a reduction in her working hours. In an email, she said that she was “coping with the ‘Old Lady Disease’” and she requested a reduction in hours to 30 per week over four days, with a Wednesday off. This was agreed on a temporary basis, to be reviewed on 1 July 2022.

A review meeting was not arranged, though, and it was around this time that Ms Johnson asked to reduce her working hours further to 26.5 per week over three and half days, with Fridays off. She also asked to take her lunch break at the end of the working day Monday to Wednesday, allowing her to leave early. In the email request, she referred to her ‘menopausal issues’.

Her employer rejected the flexible working request and the implication was that she would need to return to her original working pattern. Consequently, Ms Johnson resigned and brought claims of disability discrimination, sex discrimination and constructive unfair dismissal.

Not adequately consider request

The employment tribunal found that Bronzeshield Lifting Ltd did not adequately consider Ms Johnson’s request for flexible working arrangements. The company argued that her proposed schedule would disrupt business operations, particularly on Fridays, their busiest day. The ET concluded that the employer failed to make reasonable adjustments for Ms Johnson’s condition, amounting to disability discrimination.

ET decision

Disability discrimination

The employer had accepted that they had not considered or explored the link between the flexible working request and Ms Johnson’s menopausal symptoms. Therefore, she had suffered less favourable treatment because of the disability of menopause.

Sex discrimination

This claim was dismissed, as the refusal of the flexible working request was not ‘because of’ her menopause. The employer would have refused a similar flexible working request because it had valid reasons for refusing the request, in that the work pattern requested would breach rules relating to daily rest breaks and Fridays were the busiest working days.

Unfair dismissal

This claim was upheld, because the ET concluded that the employer had committed a breach of contract by not following a fair process in considering her health issues and the impact on her work, leading to her eventual dismissal.

Summary and advice

This case demonstrates the importance of employers considering flexible working requests, particularly those related to health conditions such as menopause. While employees are not required to provide specific reasons for a flexible working request, if they do, employers should discuss them and consider their legal obligations. Failure to do so could result in claims of discrimination and unfair dismissal.

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