In 2021, we reported on the case of Follows v Nationwide Building Society. In that case the employee was on a homeworker contract working as a Senior Lending Manager ("SLM") but attended the office 2 or 3 days a week. The employer sought to reduce the number of SLMs and required them all to be office-based because of a need for greater staff supervision by SLMs. Although there were more volunteers for redundancy than required, the employer approached some and asked them to stay, while making the claimant redundant. A fellow SLM, who was also a homeworker, was also dismissed.
We covered this case because it was an example of indirect disability discrimination by association - the claimant was a carer for her disabled mother and the tribunal accepted that carers for disabled people are less likely to be office-based than non-carers. The requirement to no longer work at home put the claimant at substantial disadvantage because of her association with her mother's disability.
So why are we mentioning this again now? Firstly, because the judgment in the remedy hearing (where the claimant's compensation is assessed following her successful tribunal claim) became available recently and the claimant was awarded £345,708; and secondly, because post pandemic we are seeing more employers starting to mandate that employees, who had been working at home, should return to the office. And while it is easy to say that this case is unusual in as much as it is an example of indirect discrimination by association, the case also included a claim of indirect sex discrimination which also succeeded. The statistics relied upon in the indirect sex discrimination claim showed that, as with childcare, more women than men are primarily responsible for caring for elderly relatives.
Claims arising from a refusal to grant a request for flexible working are routinely accompanied by indirect sex discrimination claims. There were two other significant compensation awards made in 2021 relating to the refusal of flexible working requests, where indirect discrimination claims were successful. In these cases - Daly v BA Cityflyer Ltd and Thomson v Scancrown Ltd t/a Manors - awards of £40,000 and nearly £185,000 were made, respectively.
April 2024 will see the right to request flexible working become a day 1 right. The new procedural regime (also expected to take effect in April) will allow two requests per year and employers will have a shorter two month period within which to deal with them (albeit this can be increased by agreement). This is likely to result in an increase in claims relating to breaches of the statutory flexible working process, however, remedies for breaches of the statutory process remain relatively limited. We will though also likely see an increase in related indirect sex discrimination claims. While, under the statutory regime, an employer can point to 1 of the 8 permissible reasons for refusal of a request, the employer has a higher test to satisfy in an indirect discrimination claim - that being whether the refusal was objectively justified.
Similarly, implementing polices aimed at getting employees back to the office are also likely to result in increased numbers of indirect discrimination claims, be they sex or disability, or indeed by association. There may also be scope for age related discrimination claims. These types of claims have potentially uncapped compensation and include awards for injury to feelings. As can be seen by the cases mentioned above, the possibility of large awards of compensation are not theoretical, they are made in practice.
Employers can still refuse flexible working requests where appropriate and employers can still insist on employees working from their premises in appropriate circumstances. However, employers need to take into account individual circumstances, ensure that matters are dealt with in a reasonable manner and, where there is indirect discrimination, ensure that any decision to refuse flexible working can be objectively justified.
