In a recent case, a female employee who worked partly from home
to help with her childcare arrangements won a case of sex discrimination when
her employer revoked this arrangement and offered her flexible hours as an
alternative.
The employee concerned had worked one day a week at home
since the birth of her first child. A
male colleague had similar arrangements to help him with his childcare
commitments in relation to his disabled son. Their employer then decided that,
after ten years of this arrangement, the female employee no longer needed to
work from home one day a week as her children were at school. She was offered flexible start and finish
times to fit in with the school run. No
explanation was offered for this review of her working arrangements.
The employee raised a grievance which was dismissed. She then brought a sex discrimination claim
on the basis that she was treated less favourably than her male colleague. She won both at the Employment Tribunal and
the Employment Appeal Tribunal (EAT).
The Tribunal found that the managers in this case failed to
properly explain their reason for the treatment of the employee and concluded
that the reasons that they gave were false.
The EAT held that the unfavourable treatment, the difference in gender
of the employees and the false explanations given for the treatment amounted to
discrimination based on sex.
This case highlights the need for employers to act with
caution when considering or reviewing flexible working arrangements. It is important to give a plausible
explanation for any decisions and to ensure that it is in no way related to one
of the protected characteristics (sex, race, disability etc.). It is also crucially important to document
the reasons for any decisions relating to flexible working.
The rules on flexible working are due to change in the
summer. We will provide full commentary
in our next Employment News.
Petra Venton