Employment Law Case Update: Flexible Working Request and Sex Discrimination

When approached by an employee with a flexible working request, it is important that as an employer, you consider the individual circumstances of each case.  Our Employment Law team here review the rather unedifying case of Mrs L Hodgeson v Martin Designs Associates Limited 2021, in which the Employment Tribunal (ET) considered whether a female employee who was denied permission to work remotely from her son’s hospital bed was the victim of sex discrimination.

(Stand by for some jaw-dropping insensitivity.)

Mrs Hodgeson worked for her employer as an office manager until her resignation in July 2019.

In early November 2018, Mrs Hodgeson’s son was diagnosed with an aggressive form of leukaemia. She informed Mr Martin, the managing director, that she would be with her son as much as possible to support him through his chemotherapy treatment and requested that she be allowed to work flexibly. Mr Martin expressed his concern for Mrs Hodgeson’s son and suggested a 50/50 split of working from home and the office.

Mrs Hodgeson explained that she could not attend the office as she could not leave her son, but reiterated her desire to keep working. Mr Martin then recruited another person to take on some of Mrs Hodgeson’s work. When Mrs Hodgeson asked why she could not continue with her work Mr Martin said: “I can’t ask you to do that Lorraine.”. When she explained that she needed to work to pay for her mortgage and as something to do while at the hospital, the ET heard Mr Martin replied that he “didn’t have an open cheque book”. He told Mrs Hodgeson she would go on annual leave for two weeks and then on unpaid leave, and that her job would be there for her when her son had completed treatment.

In February 2019, Mrs Hodgeson submitted a formal flexible working request which Mr Martin denied, saying it would be “detrimental to the business”. He then told Mrs Hodgeson that they had restructured the business to cover her work and that her role was no longer there. He proposed a settlement agreement and that the company and Mrs Hodgeson “go our separate ways”.

Mrs Hodgeson appealed the denial of her flexible working request but the appeal was unsuccessful. She subsequently resigned.

The ET was critical of Mr Martin’s treatment towards Mrs Hodgeson and found his denial of her flexible working request “was influenced by his belief that he knew best”. Judge Wade stated that Mr Martin did not consider Mrs Hodgeson’s views and “had a closed mind to the idea that she could fulfil all or part of her role remotely”. This was in “stark contrast” to how Mrs Hodgeson’s male colleagues were treated; many had previously been granted permission to work remotely.

The ET found that Mr Martin “would have accepted that a male colleague was best placed to know what he could and could not do in such circumstances and would have put arrangements in place”. Further, Mr Martin’s refusal to allow Mrs Hodgeson to work from home along with his “insensitive remark” about not having an open cheque book breached the implied term of trust and confidence. Mrs Martin’s claims for direct sex discrimination and unfair dismissal therefore succeeded.

Mrs Hodgeson was awarded about £60,000, which included £5,000 in aggravated damages for sex discrimination.

This case reminds employers to deal with flexible working requests in a fair, non-discriminatory manner. Employers must give careful consideration to the employee’s views and not make assumptions regarding their ability to work remotely.

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.