We know that providing family-friendly working opportunities and dealing fairly and properly with employee preferences around flexible working and parental leave, are high priorities for many of our clients. However, it can be difficult to navigate the relevant processes with confidence.
These learning points, from three family-friendly working cases, provide some useful guidance.
An employee on maternity leave is only obliged to give her employer 8 weeks’ notice of her return-to-work date if she intends to return to work before her statutory maternity leave ends. If she does not intend to return to work following maternity leave, she will usually be required to give notice in accordance with her contract of employment. In Duffy v Barnet, Enfield and Haringey NHS Trust an employment tribunal found that the employer had discriminated against a pregnant member of staff, by asking her to confirm her future plans before she went on maternity leave.
The NHS trust was undertaking a restructure, impacting its support staff, including Ms Duffy. She was informed that, as she was pregnant, she would be automatically mapped to a role in the new structure at a slightly higher salary point (although her employer ultimately back tracked on this promise). This angered a colleague, who was required to apply for a post in the new structure and prompted her to remark that Ms Duffy had “planned [her] pregnancy well” in order to secure promotion, and to ask her whether she had told her boss that she would not be coming back after maternity leave. Both of these comments were found to be discriminatory, as they were based on ‘stereotypical assumptions’ around pregnancy and maternity leave, and not on anything that Ms Duffy had said or done. Similarly, the employment tribunal held that Ms Duffy had been unfavourably treated by her manager who, at a one-to-one meeting, ‘nodded towards her pregnant stomach’ and asked her about her ‘future plans’. This was found to be a ‘clumsy’ attempt at engagement, rather than motivated by malice, but was considered ‘inappropriate’ and discriminatory, nevertheless.
Even if an employee wishes to discuss their intentions prior to commencing maternity leave, or in the early stages of their absence, it is important to reassure them that they need not confirm what they want to do until nearer to their return date (or decision not to return). Any attempt to pre-empt an employee’s decision, or to pressurise them to confirm their plans, poses a risk of discrimination.
For further guidance on dealing fairly with pregnant employees and new mothers in the context of restructure, read our article 'Planning redundancies: top tips for dealing with employees on maternity leave'.
Any employee, with at least 26 weeks’ continuous service, may request flexible working for any reason. However, often, changes to working patterns are requested to help balance work with family life.
An employer must deal with a flexible working request in a ‘reasonable’ manner, and within a three-month timeframe (although a longer period may be agreed by the parties). If the request is not dealt with within this agreed decision period, or the request is handled unreasonably in another way, the employee may make an employment tribunal claim and may receive a maximum of eight weeks’ pay.
In Walsh v Network Rail Infrastructure, the Employment Appeal Tribunal (EAT) confirmed that any extension to the decision period must be clearly and expressly agreed with the employee. Mr Walsh submitted his flexible working request on 11 February 2019, which meant that the ‘default’ three-month decision period expired on 10 May 2019. However, at this point, correspondence between Mr Walsh and his employer regarding his request was still ongoing. A meeting had taken place, at which his request had been rejected by his employer, but his right to appeal was still outstanding. Mr Walsh was informed that an appeal hearing was scheduled for 1 July 2019, which he agreed to attend. However, before this meeting could take place, Mr Walsh submitted an employment tribunal claim.
His employer argued that his agreement to attend the appeal showed that he had implicitly agreed to extend the decision period. However, the EAT disagreed. The statutory flexible working scheme does not say anything about implied agreement; specific agreement is needed to avoid confusion.
To avoid employment tribunal claims arising from flexible working requests, it is important to diarise key dates carefully, and to remember to build-in time for any appeal against the decision to be processed. Any extension to the three-month decision period (for example, to complete an appeal) must be clearly agreed and recorded in writing if at all possible.
In Hughes v Progressive Support Limited, the claimant, Ms Hughes, was a support worker who had recently returned from maternity leave. She had been working a guaranteed minimum of set or ‘considerate’ hours, which took into account her childcare needs. Her employer later withdrew this arrangement and allocated new hours, according to their service needs, which did not accommodate Ms Hughes’ childcare responsibilities as comfortably. Her employer also told her that she might be moved onto a ‘zero-hours’ contract. As a result, she was not able to work as many hours as previously. While she was not penalised for not working the allocated hours, she did lose out on pay.
The employment tribunal that first heard the case held that, as no penalty had been applied, the employer had not indirectly discriminated against Ms Hughes on the grounds of sex by changing her allocated hours. However, on appeal, the Employment Appeal Tribunal (EAT) disagreed, holding that requiring employees to work certain hours, irrespective of their childcare responsibilities, will amount to a ‘provision, criterion or practice’ for the purposes of discrimination law, even if they are not penalised for not working those hours. The adverse financial impact on the claimant had not been fully considered.
Similarly, in Dobson v North Cumbria NHS Trust, the claimant worked two consistent days per week but, following a review of duties, was asked to work flexibly, including at weekends. Mrs Dobson was unable to commit to this, because of her caring responsibilities for her three young children, two of whom were disabled. Unlike Ms Hughes, she was subject to a very clear penalty, as her employment was terminated. The employment tribunal that first heard the case rejected her claims of unfair dismissal and indirect sex discrimination. However, when Ms Dobson appealed, the EAT held that proper consideration had not been given to the fact that women, because of their childcare responsibilities, are less likely to be able to accommodate working patterns that vary week on week (often referred to as the ‘childcare disparity’). The EAT asked the employment tribunal to look again at the facts of the case with this principle in mind.
It is crucial to consider an employee’s family circumstances and caring responsibilities when discussing their working hours, especially if a change is requested for a family-friendly reason. However, if the needs of your business mean that it is genuinely extremely difficult to accommodate a particular working pattern, it is of course possible to lawfully refuse, provided that you can clearly explain the reasons for your decision and can demonstrate that you have carefully considered the employee’s request and other possible options. We are always on hand to help if you are unsure.