Employment Law Case Update: Indirect Sex Discrimination

In adequate management of your pregnant employees could see you in Employment Tribunal, so it is vital that you treat your employees with the due consideration to avoid such claims.  Our Employment Law team here reviews the case of Mrs A Thompson v Scancrown Ltd, t/a Manors 2021, and a remark to take any HR professional’s breath away.

Mrs Thompson was employed as a sales manager by the company in October 2016. In the spring of 2018 she announced that she was pregnant. The tribunal heard that Mrs Thompson’s boss, Mr Sellar remarked to a colleague’s partner “Why is she pregnant when we are doing so well? I was warned about employing a married woman of her age” - though Mr Sellar denied making the comment.

While on maternity leave, Mrs Thompson met with Mr Sellar and requested that on her return her working hours be reduced. She requested to work four days a week instead of five and that she be able to leave at 5pm instead of 6pm so that she could pick up her daughter from nursery. Mr Sellar told Mrs Thompson she should would need to make a formal flexible working request, which she then did.

Mrs Thompson’s flexible working request was denied. Mr Sellar cited the reasons for the refusal as being “(1) the burden of additional costs; (2) detrimental effect on ability to meet customer demand; (3) inability to reorganise work among existing staff; (4) inability to recruit additional staff; (5) planned structural change.” He also said that clients “expect consistency in the sales manager they deal with” as part of the reason why her hours could not be covered by someone else. Mrs Thompson appealed but was unsuccessful. 

In December 2019, Mrs Thompson resigned. She filed a claim against the company for harassment related to sex, discrimination related to pregnancy and maternity, indirect discrimination related to sex, and unfair dismissal.

Only Mrs Thompson’s claim of indirect sex discrimination succeeded. The ET accepted that women still shoulder a greater proportion of the responsibility for childcare than men and that the company’s practice of requiring employees to work full-time hours placed Mrs Thompson at a disadvantage. The ET then went on to consider whether requiring employees to work full-time hours was nevertheless justified. The ET concluded it was not, stating that the company failed to show that the “refusal of the proposed reduction in hours of work was proportionate to the real need of the business to maintain successful relations with customers.”

Mrs Thompson was awarded £184,961.32 for loss of earnings, pension contributions, and injury to feelings.

This case reminds employers of their duty to seriously and objectively consider flexible working requests by employees. While employers can refuse a request for one of the reasons listed in section 80G of the Employment Rights Act, this case shows that this is not always an easy bar for employers to clear. Before rejecting a request employers should take the time to enter into discussion with the employee, explain the employer’s point of view, and propose alternative solutions.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.