The recent case of Mrs Thompson v Scancrown Ltd (trading as Manors), in which estate agent Alice Thompson won a sex discrimination claim with an award of close to £185,000, has highlighted the importance of employers considering flexible working requests from their employees, and having valid and justifiable reasons for refusing them. David McBride, Head of Employment at Bray & Bray explains the case and the process for requesting flexible working arrangements.

The case

Alice Thompson was employed as a sales manager at a small independent estate agent in London before she became pregnant in 2018. When she wanted to return to work following her maternity leave, she made the request to her employer to work four days per week and shorten her working day to 5pm from 6pm, to enable her to collect her child from nursery.

Mrs Thompson’s flexible working request was denied by her employer, who said they couldn’t afford for her to work part-time. After resigning, she decided to pursue an employment tribunal, and brought other claims against her employer including unfair dismissal, direct discrimination, and harassment. Though these other claims were denied by the tribunal, Mrs Thompson succeeded in her claim for indirect sex discrimination, on the basis that the tribunal found that her employer had failed to consider more flexible working.

The judge awarded Mrs Thompson almost £185,000 for loss of earnings, loss of pension contributions and injury to both feelings and interest.

Employee rights to flexible working

By law, all employees have the right to make a flexible working request if they have worked for their employer for at least 26 weeks, are legally classed an employee, and have not made any other flexible working request in the last 12 months.

Employers must deal with flexible working requests in a ‘reasonable manner’ – examples of which include assessing the advantages and disadvantages of the application, holding a meeting to discuss the request with the employee, and offering an appeal process.

Employers can download the Acas Code of Practice on flexible working requests for further guidance.

Making a flexible working request

A request for flexible working is known as ‘making a statutory application.’ The process involves the employee writing to the employer to make the request, a meeting being held to discuss the request in more detail, and the employer considering the request and making a decision within three months. If the employer agrees to the request, they are required to change the terms and conditions in the employees’ contract. If the request is refused, employers must write to the employee providing the justifiable business reasons for the refusal.

Business reasons for refusing flexible working

Employers can turn down an employees’ request for flexible working for any of the following business reasons:

  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

Appealing a refusal of flexible working

Employers must provide fair and justifiable reasons for denying any flexible working request and explain these clearly to the employee concerned. Moreover, employers should look to consider any alternatives to the employees’ original request, that might work for both the employee and the business. In the case outlined above, Mrs Thompson said her request for flexible working was not “seriously considered” and that she would have been happy to hear a counteroffer from her employer. Instead, she said her request was “shut down at every avenue, not listened to, not considered.”

If employees wish to appeal the decision made by their employer, they must follow the company’s procedures for appealing.

Employees can complain to an employment tribunal if the employer:

  • did not handle the request in a ‘reasonable manner’
  • wrongly treated the employee’s application as withdrawn
  • dismissed or treated an employee poorly because of their flexible working request, for example refused a promotion or pay rise
  • rejected an application based on incorrect facts

Before going to tribunal, it is advisable for employees to seek legal advice to ensure they know their rights and the process is followed correctly.

Speak to our team

Bray & Bray’s employment team can provide specialist advice and support to both employees and employers in relation to flexible working requests, appeals and employment tribunals.

Our employment lawyers are based at each of our four offices in Leicestershire. Contact us by calling or clicking on the link below, or pop into one of our offices.

Leicester: call us on 0116 254 8871.

Hinckley: call us on 01455 639 900.

Market Harborough: call us on 01858 467 181.

Corby: call us on 01536 851050.