The Employment Appeal Tribunal (EAT) has held that requiring a female employee to be fully flexible about the days on which she worked was a provision, criterion or practice (PCP) that could cause disadvantage – even though it was never implemented.
Glover v. Lacoste UK Ltd – the facts
Ms Glover (the Claimant) was employed full time by Lacoste UK Ltd as an assistant store manager. She commenced a period of maternity leave on 3 March 2020 and was subsequently placed on furlough because of the COVID-19 pandemic. During this time, she made a flexible working request to work three days a week instead of five. Her request was rejected and she subsequently appealed the decision. Following the appeal hearing, she was offered a fully flexible working pattern of four days a week, but she would be required to work on any day of the week chosen by her employer. This decision was said to be final.
The Claimant instructed a solicitor who wrote to her employer to request that the decision be reconsidered. The employer was advised that, if it was not reconsidered, the Claimant might resign and claim constructive dismissal. In response to this, the employer granted the Claimant’s original request in full.
The Claimant subsequently brought an employment tribunal claim for, amongst other things, indirect sex discrimination. She asserted that there was a PCP, namely that her employer required fully flexible working with only four weeks’ notice, and that this placed her at a substantial disadvantage compared to a male employee, in light of her childcare arrangements.
Employment Tribunal decision
The Employment Tribunal (ET) held that it was bound by a previous case, Little v. Richmond. It interpreted this case as establishing that, for the PCP of fully flexible working to have applied to her, and for the claimant to have suffered disadvantage, she would have had to return and attempted to work under the condition. The employee in that case was found not to have suffered any disadvantage or detriment as she had resigned before her appeal was upheld.
Applying this to the Claimant’s case, the ET held that she did not suffer any disadvantage. Whilst it may have been distressing for her to anticipate that she might have to resign, she was never required to work under the condition or to resign. The ET did make it clear that, had the requirement of fully flexible working been applied to her, this would have put women and the Claimant specifically at a particular disadvantage.
The Claimant appealed the decision.
The EAT decision
The EAT held that the ET had misinterpreted Little. It said that the reason why there was no indirect sex discrimination in that case was not because the claimant did not return to work, but because the refusal was expressly stated to be subject to appeal and was therefore provisional.
The EAT drew a distinction in the Claimant’s case as she had already received the final decision and it was only overturned because her employer received a letter of action. Based on this, the EAT remitted the claim to a freshly constituted employment tribunal and made it clear that the PCP had been applied. The only question to determine was whether the Claimant had suffered a disadvantage or detriment.
Whilst the question of whether the Claimant did suffer a disadvantage will be considered by another employment tribunal, the EAT commented that it was hard to see on what grounds it could be determined that she had not, given that the appeal was not in her favour and that she had to consider resigning.
The case serves as an important reminder for employers to take care when dealing with flexible working requests and be mindful of the risk of indirect discrimination. While overturning a discriminatory decision on internal appeal does not cure any disadvantage or detriment already suffered by the employee, the EAT in this case did comment that it may have a significant impact on any compensation award.
If you would like to discuss the contents of this article or would like assistance in dealing with a flexible working request, please contact a member of our team.