Flexible working | Employment Tribunal Case

In this blog, our Employment Law team explore a recent Employment Tribunal case, and the potential effect the outcome of the case could have on employers.

Case update

An Employment Tribunal has awarded £36,000 to a woman whose employer denied a flexible working arrangement – Ms Hedger v British Deaf Association (3318925/2019).

Ms Hedger started working for the British Deaf Association (BDA) on 5 March 2014. She worked 28 hours a week over 4 days. She resigned from her role as a Project Manager in 2019 as her manager refused to approve her request to reduce her hours after having a baby.

Facts of the case

After a period of maternity leave, Ms Hedger planned to return to her role in February 2019. In order to balance her childcare commitments, she asked if she could reduce her working hours to 16 hours over two days. She also suggested that the individual who had been hired to cover her job during maternity leave be retained and they carry out the role together under a job share arrangement.

Her request was rejected. She subsequently requested to work 24 hours over three days. This request was also rejected as she was told that her role required a minimum of 28 hours a week, but the BDA gave no real evidence to support this requirement and it did not investigate any other possible options.

Ms Hedger brought claims for sex discrimination, constructive unfair dismissal and a breach of the requirements for handling flexible working requests.

Employment Tribunal outcome

The Employment Tribunal said that the BDA’s decision to demand at least 28 hours a week created a ‘disadvantage’ for women, who are more likely to have childcare issues than men. The Employment Tribunal was satisfied that Ms Hedger was put at a particular disadvantage and that arranging childcare which was affordable and practicable meant that she faced greater difficulties in working four days a week.

The BDA based its decision to refuse working 24 hours over three days on an assumption that Ms Hedger would be travelling three and a half hours each way to get to work, when in fact it was two and a quarter hours. The BDA did not satisfy the Employment Tribunal that the outright refusal to consider anything other than 28 hours was proportionate. The BDA was not even willing to consider a trial period for the 24 hours.

It was also stated that the BDA did not ‘adequately consider’ the possibility of trying to hire someone else to do the hours which Ms Hedger wanted to drop.

It was concluded that the BDA’s actions in refusing the flexible working request amounted to conduct, without reasonable and proper cause, which was likely to destroy or damage the relationship of confidence and trust between employer and employee.

The Employment Tribunal upheld her claims for constructive unfair dismissal, indirect sex discrimination and breach of the requirements for handling flexible working requests.

When considering an appropriate award, the Employment Tribunal took into account that Ms Hedger had been caused anxiety, sleeplessness and feelings of loss of self-worth as a result of the BDA’s refusal to grant her request. The discriminatory conduct was not a one-off act and not of a short-term duration.

Key points for employers

• It is crucial to be familiar with the statutory flexible working scheme and ensure that it is followed.
• Where an employee makes a flexible working request, an employer must fully explore all the available options which could allow it to be accommodated, such as job shares, part-time working and homeworking arrangements. If it is unclear how the change will work in practice, then a trial period is recommended.

Please note that each case does depend on its own facts as each situation is unique. If you require advice or assistance with any flexible working request or any other HR/employment law matter, please contact our HR and Employment law team using the form below.