Indirect Discrimination - A Recent Case Update

You may have noticed a recent highly publicised case that reached mainstream media outlets, in which Alice Thompson, was awarded an eye watering £185,000 compensation as a result of indirect discrimination in the work place.

This was following her return to the office from maternity leave when she made a request under the statutory framework of the flexible working regulations, to work a 4 day week and finish one hour earlier per day, even suggesting she could work 8-5 rather than 9-6 as not to reduce her full-time working day. The reason for her request was to collect her child from day-care, which closed at 6pm; a typical childcare providers closing hours.

Alice set out in her case, that upon announcing her pregnancy things started to change at work and she gave examples of workplace issues which included being made to feel left out of activities on work trips.

She also set out that her request was not meaningfully considered, with all suggestions and alternatives put forward as possible solutions being shut down without proper discussion. Her employer was unable to demonstrate that they had properly considered the case and justify their refusal.  

The tribunal found that she had been indirectly discriminated against on the grounds of her sex, given she was asking to change her working hours owing to her caring responsibilities as a mother, on the basis that her request was not properly considered.

Indirect Discrimination occurs when a policy, custom or practice (sometimes referred to as a PCP) is applied to everyone at a workplace in the same way, but its affects place certain groups of people at a disadvantage.

This ruling should serve as a stark reminder to employers that flexible working applications must be carefully and properly considered and only refused in accordance with the specified reasons contained within the regulations. These are:

• The burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to reorganise work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work
• Planned structural changes

It is also advisable when a refusal is made that the decision maker clearly documents their decision making process including any relevant costings and business related issues so that in the event of a challenge they can clearly evidence the basis of their decision.

For more information on any of the above or to speak to our expert Employment Law team on any Employment and HR issues contact us on 03333 208644 or email law@jcpsolicitors.co.uk.