Flexible working – Making non-discriminatory decisions

We are seeing a steady trickle of decisions focused around the issue of flexible working requests or employer requirements for changes to working patterns (both pre and post the pandemic).

We have written on previous cases here and here. The main issue at stake is discrimination: were the decisions made indirectly discriminatory against women? The latest decision to come out of the Employment Appeal Tribunal (EAT) places the HR practices of the retail giant Primark under the microscope. Unfortunately, the decision at the heart of the case proved no more robust than some of the clothes on sale!

Case details – Allen v Primark Stores [2022] EAT
Ms Allen was employed at Primark as a department manager. She had been employed since 2011 and sometime in 2018/2019, she went on maternity leave. She was intending to return to work in November 2019. In September 2019, she made a request under the company’s flexible working policy to change some contractual terms for childcare reasons. The issue was her having to guarantee her availability to work late shifts. This was a standard condition of all department managers. Negotiations with Primark were successful to an extent, but the sticking point was the requirement that Ms Allen be required to guarantee her availability on Thursday nights. This was, she understood, a provision, criterion or practice (PCP) that disadvantaged women (because of their childcare arrangements) and so was indirect discrimination. Ms Allen resigned and bought claims for indirect discrimination and constructive unfair dismissal at tribunal.

Primark won at first instance at tribunal but was not so lucky at the EAT. The tribunal had, the EAT reported, made an error when they were looking at the details of Ms Allen’s case. The tribunal had quite rightly looked to a comparison pool of those affected by the PCP to see whether women were indeed disadvantaged because of their childcare responsibilities. The pool contained two men and Ms Allen. Hence the tribunal concluded that women were not disadvantaged because the PCP affected two men and one woman. However, the comparison pool was based on the wrong PCP: the tribunal had defined the PCP as those who might be asked to work Thursday nights. Ms Allen, however, was not simply asked to work as her male colleagues were, she was required to guarantee her availability to work Thursday nights. Her male colleagues were not her comparators. The decision has been abandoned and the case will be heard again.

Making non-discriminatory decisions
Whilst this case appears at face value to be technical, the question at the heart of it is much simpler; what is the impact of an employer’s decision on the people affected by the decision? Inevitably there will be an impact – employers must make hard decisions which are not always convenient for employees. Inconvenient and perceived unfair decisions can lead to demoralised, unhappy and underperforming employees. Decisions that put one particular group of people, such as women, at a disadvantage can lead to indirect discrimination claims (which can, in specific circumstances, be objectively justified). Not to mention the wider repercussions that having a world of work that disadvantages women compared to men has on the gender pay gap and the wider equality of men and women in the workplace.

When putting PCPs in place and/or responding to flexible working requests, here are the top tips we think employers should consider to ensure their decisions are fair and non-discriminatory:

• Identify at the outset what you are trying to achieve for the organisation.
• Investigate the impact on staff – ask them how a certain shift pattern/rota would impact their lives outside of work. If a change would mean that a female employee would need to make new childcare arrangements, how much time would she reasonably need to make those new arrangements before the change comes into effect?
• Take the time to note and recognise the impact – this will take time and should be carried out by more than one person to ensure that a full 360-degree perspective is completed.
• Look further to whether there are groups who are feeling the impact more keenly – do they have a protected characteristic? Are you asking the right question when assessing who is affected and how they are affected?
• Investigate whether the impact can be lessened on these groups. Are there any alternative ways to achieve your objective that you can trial first?
• If the impact cannot be lessened, are you happy that the decision can be objectively justified should a claim of indirect discrimination be made?

For more information

If you would like any further advice on this issue, please contact Hannah Bollard.