The EAT has held that an employer’s decision to turn down a flexible working request was a practice, criterion or provision (“PCP”) causing disadvantage even though the decision was reversed before the employee returned to work.
THE FACTS
Ms Glover was employed by Lacoste UK Ltd as a store manager. Before she went on maternity leave, she worked five days a week. During her maternity leave, she made a flexible working request to return to work on a three day week working pattern. The request was turned down. She exercised her internal right of appeal. The appeal was partly successful, and she was offered a four day week, on a fully flexible basis, working any day of the week, for a six month trial basis. She was told that this decision was final.
As this outcome would cause her childcare issues, Ms Glover’s solicitors wrote to Lacoste explaining she may have to resign if the position was not reconsidered. The company agreed to her original flexible working request, so she never had to work the working pattern offered at the appeal hearing. However, she claimed in the employment tribunal that she had suffered indirect discrimination, asserting that a provision, criterion, or practice (“PCP”) requiring a fully flexible working pattern had been applied to her.
Lacoste argued that a PCP had not been applied as Ms Glover had been on furlough when her request was conceded, and she had not been required to work fully flexibly. She argued that she had been subject to detriment by reason of the original, and the appeal, decisions because she had been told, and believed, that she would have to return to work fully flexibly four days a week. The tribunal concluded that a PCP had not been applied and that she had not suffered disadvantage.
Ms Glover appealed to the EAT, and the EAT upheld her appeal. It held that the application of a PCP with which a woman could not comply was detrimental even before it was invoked or enforced. It was not the suffering of a consequence which amounted to an act of indirect discrimination; it was the application of a requirement which was to her detriment because she could not comply with it and had to consider resigning as a result of it. Her case was remitted to the employment tribunal to consider remedy.
WHAT DOES THIS MEAN FOR EMPLOYERS?
It will be unusual for an employee to bring a claim where their flexible working request has, ultimately, been successful. Even if they do so, damages will likely be limited to a small award for injury to feelings. However, this case establishes that even where an indirectly discriminatory PCP is later reversed and never implemented it still constitutes a disadvantage, . Ms Glover was supported in her claim by the Equality and Human Rights Committee, so this is an issue that the EHRC considers to be important.
