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Estate agent wins sex discrimination claim against employer who refused her flexible working request

Written by Kirstie Beattie on 1 October 2021

A mother who made a flexible working request to allow her to leave work at 5pm instead of her employer’s usual finishing time of 6pm to pick up her daughter from nursery, and to work a four-day week instead of five, has won her claim for indirect sex discrimination against her estate agent employer.

An Employment Tribunal (ET) awarded Alice Thompson nearly £185,000, which included interest, past and future loss of income and pension contributions, and £13,500 for injury to feelings.

Thompson v Scancrown Ltd t/a Manors

In Thompson v Scancrown Ltd t/a Manors, Mrs Thompson, a sales manager, made the flexible working request while on maternity leave to company director Paul Sellar, which he refused, saying that Manors could not afford for her to work part-time. Mrs Thompson claimed her request was not fairly considered and subsequently resigned and brought a claim for indirect sex discrimination.

Under section 19 of the Equality Act 2010, indirect discrimination occurs when a provision, criterion or practice (PCP) which applies to everyone puts, or would put, a particular group of people at a disadvantage based on a protected characteristic (in Mrs Thompson’s case, sex) when compared to those who do not share this protected characteristic. Indirect discrimination can only be justified if an employer can show that the PCP was a “proportionate means of achieving a legitimate aim”.

The ET upheld Mrs Thompson’s claim of indirect sex discrimination, finding that more women than men need to amend their working pattern to reflect their caring responsibilities. It held that making Mrs Thompson work until 6pm, a time when nurseries typically close, placed her at a disadvantage, and that Manors’ refusal to agree to the proposed reduction in hours of work was not a proportionate means of achieving a legitimate aim of the business to maintain successful relations with customers.

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Lessons for employers

While this decision is a first instance judgment, meaning it is not binding on subsequent Employment Tribunals, employers must be aware of the risks of discrimination claims or constructive dismissal claims associated with flexible working requests.

If an employer’s refusal of a request is held to be discriminatory, it may also be held to be a fundamental breach of an employment contract, which will entitle an employee to resign in response to that breach and claim constructive dismissal.

Additionally, any dismissal of an employee where the principal reason for dismissal is related to the employee making a flexible working request, bringing a claim relating to flexible working, or being selected for redundancy on grounds relating to flexible working, will be automatically unfair.

Facing a similar situation?

WorkNest’s Employment Law Team can provide all the legal advice employers need to avoid significant financial costs and reputational damage. Learn more about our flexible working support or get in touch on 0345 226 8393.

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