A recent Employment Appeal Tribunal (EAT) decision in the case of Glover v Lacoste UK Ltd is a helpful reminder that disadvantage or detriment arising from a discriminatory decision cannot necessarily be cured on appeal (although it may impact compensation), acting as a cautionary tale for employers considering and negotiating flexible working requests.
In this case, the claimant made a flexible working request while she was on maternity leave. Having previously worked five days on a flexible basis across all seven days of the week, she asked for three fixed days to accommodate childcare.
This was rejected, and on appeal, she was initially offered four days a week on a flexible basis. However, following legal intervention, and while she was still off work, her original request was agreed.
She subsequently brought an indirect discrimination claim which was rejected by the original Employment Tribunal (ET) on the basis that the provision, criterion or practice (or PCP) (to work flexibly) was never applied.
The EAT disagreed with the ET’s analysis, saying that disadvantage or detriment should be considered at the time of the initial rejection, regardless of whether the required working pattern was ever worked. The EAT remitted the claim to the original tribunal for reconsideration.
It is important to seek expert legal advice whenever your business is faced with a request for flexible working because, if you get it wrong, the potential costs can be very high and adverse publicity unwelcome.