Legal

Why employers need to be wary of having blanket policies

15 Nov 2021 By Adam Penman

Adam Penman highlights the dangers of imposing policy decisions on all staff, particularly if it disadvantages women with childcare responsibilities

In Thompson v Scancrown Ltd T/a Manors, a remedy hearing on 12 August 2021 awarded Ms. Thompson, a successful sales manager, over £184,000 in her claim of indirect sex discrimination against her employer, a small independent estate agent. 

On return from maternity leave, Thompson applied for flexible working, but was refused on the basis that it was not viable due to the generation of additional costs and the detrimental effect on the business’ ability to meet customer demand if it were to accommodate a request for a four-day week and finishing hours of 5pm rather than 6pm. The employer also reasoned that it was not able to reorganise work among its existing workforce to enable Thompson’s request. 

Following this refusal and the rejection of a subsequent grievance, Thompson resigned in December 2019 and claimed sex discrimination (both direct and indirect), as well as pregnancy and maternity discrimination. Each of Thompson’s claims were rejected, with the notable exception of the indirect discrimination claim. 

The tribunal found that forcing Thompson to work until 6pm – beyond the usual closing hours of nurseries – in fact put her at a disadvantage when compared with a hypothetical male comparator. 

The tribunal considered that the requirement to work 9am to 6pm, Monday to Friday, which applied to all employees of Manors, could, despite progressive shifts in societal attitudes towards men taking a more prominent role in childcare, put mothers at a disadvantage, as women remain more likely to have primary responsibility for children. Thompson had produced evidence from a 2018 survey which reported that 64 per cent of mothers have primary childcare responsibilities, compared to just 36 per cent of fathers. 

The tribunal did not buy the employer’s rationale in declining the flexible working request, as there were arrangements that had been introduced to cover Thompson on maternity leave that could have been continued. In addition, although it would have been difficult to recruit someone for one day a week to cover Thompson’s sales manager role, there were other promotion and recruitment options that would cover the role and plug any staffing gaps. 

The large compensation award was for Thompson’s loss of earnings, pension contributions and injury to feelings and interest. The value of such an award underpins the level of risk posed to employers when considering flexible working requests from women with childcare responsibilities and the importance of employers seeking legal advice early in any evaluation of such a request. 

The tribunal’s decision demonstrates that employers must not only execute a proper procedure when considering statutory flexible working requests, but in the case of requests made by mothers in particular, it must conduct a thorough review of its organisation to investigate alternative set-ups to accommodate women with childcare obligations. 

The decision is also an example of the tribunal being willing to examine and challenge blanket policy decisions in relation to any provision, criteria or practice which, in principle, applies equally to all employees. It also shows the tribunal’s ability to come to its own conclusion around how an employer ought to have approached its analysis. 

Given the evidence which illustrated the particular disadvantage to women with childcare responsibilities in the workplace, it is unlikely that the same outcome would have been generated if Thompson had been a man making the same request. Accordingly, as society changes and if childcare obligations become more equal, this outcome may change again. 

Adam Penman is an employment lawyer at McGuireWoods

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