No, said the Employment Appeal Tribunal (“EAT”) in the case of Glover v Lacoste UK Ltd[1].
The employee was employed by Lacoste as an Assistant Store Manager working full-time, 39 hours per week, according to a rota which required her to work five days out of seven. The employee went on maternity leave in March 2020. Intending to return to work in March 2021, the employee made a flexible working request in November 2020, seeking to work three days per week. Lacoste met with the employee on 8 March 2021 to discuss the request, which was subsequently refused. The outcome letter issued on 10 March 2021 provided a right of appeal, which the employee exercised. The employee did not return to work in March 2021 as she took accrued leave and was then placed on furlough when the store temporarily closed due to Covid-19.
The employee’s appeal was heard and refused on 7 April 2021. Lacoste did, however, offer the employee four days per week to be worked flexibly (i.e. different days) on a six-month trial basis. The “compromise” made it impossible for the employee to organise childcare, so the employee instructed solicitors who wrote to Lacoste and asked them to reconsider their decision in order to avoid a constructive dismissal claim. Following this, Lacoste agreed to the employee’s flexible working request in full (i.e. three days per week) and the employee returned to work but pursued a claim for indirect sex discrimination. The employee argued that Lacoste’s requirement to work fully flexibly across the week was discriminatory because it put women at a disadvantage compared to men (noting that childcare responsibilities still predominantly fall on women).
The tribunal rejected the claim on the basis that the requirement had never applied to the employee in practice because Lacoste reversed the decision before she returned to work and had therefore not suffered any disadvantage. However, the tribunal did state that if the requirement had been applied to the employee, it would have been discriminatory and could not have been justified. The employee appealed.
The EAT allowed the appeal. The EAT found that the discriminatory requirement to work four days per week on a fully flexible basis “applied” to the employee upon the determination of her appeal. It was irrelevant that the employee had never actually worked under that arrangement, nor did it matter that Lacoste had later changed its mind. However, the question as to whether the employee suffered any disadvantage was remitted back to the tribunal.
Key points
This decision underlines the importance of properly and fairly considering flexible working requests, including the risk of an indirect discrimination claim.
An indirect discrimination claim crystallises as soon as the decision is made by the employer. Changing its mind when challenged later does not “extinguish” the disadvantage already suffered by the employee, even where they have not returned to work.
The use of trial periods where the employer has reservations about a flexible working request can either put concerns to bed where flexible arrangements do in fact work or, alternatively, provide evidence that the flexible arrangement is not working and afford the employer the ability to bring it to an end.
Agreement to a trial period should be confirmed in writing (with a review date), making it clear that it is not a permanent contractual variation unless/until agreed as such by the employer. At which point, again, the new working pattern should be evidenced appropriately (NB requirements relating to written particulars, which will likely require a statement of changes to be issued).
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Reference:-
[1] [2023] EAT 4
