Parents, families and flexible working

Year Published: 2021

Balancing work and childcare is something which many individuals will have to battle at some point during their working lives. Over the last few months we have seen judgements coming through from Employment Tribunals relating to dismissals on the back of family-friendly flexible and part-time working requests from working parents.

 

Case study 1: Thompson v Scancrown Ltd T/A Manors

The claimant, Ms Thompson, had her part-time working request denied by Mr Sellars, a director of the respondent company. She was told that the business could not afford for her to work part-time. The claimant had requested to work four days a week and finish at 5pm rather than 6pm on her working days to allow her to collect her child from the nursery which closed at 6pm.

The Tribunal heard that the relationship between Ms Thompson and Mr Sellars deteriorated around the time she told him she was pregnant and that he had said to a colleague ‘I thought […] why is she pregnant when we are doing so well? I was warned about employing a married woman of her age’, although this was denied by Mr Sellars.

Ms Thompson put in a flexible working request after giving birth but this was denied, the reasoning being due to ‘additional costs’. The respondent also said that it had concerns about being able to meet customer demand if the claimant were to reduce her hours, as there were also concerns about maintaining good customer relations. Despite this, the Tribunal heard that two other female colleagues had previously come back from maternity leave to part-time hours.

The Employment Judge held that, while the ability to meet customer demand held some significance, the respondent was not able to show that the refusal of the proposed reduction in hours was proportionate to the real need of the business to maintain successful relations with customers.

The Judge found that denying the claimant’s part-time working request had been discriminatory on the basis of her sex. The Judge held that that flexible working appeared not to have been considered properly and that this was an ‘injustice because of her sex’.

The Judge stated that a requirement to work until 6pm each day did place the claimant at a disadvantage, as she would not be able to get to the nursery before closing and that, although it was unclear why the claimant wanted to drop down to four days a week, the requirement that she work five days also put her at a disadvantage.

 

Case study 2: Henderson v AccountsNet Ltd

Whilst at work the claimant received a text message advising her that her child was ill and needed collecting from school. The claimant was unable to get permission to leave as all managers were in a meeting at the time. She therefore told her colleagues that she needed to deal with an emergency and left the office.

Although the claimant had sent a text to her boss regarding the incident, four days later she received a letter of dismissal, referencing the suddenness of her exit and lack of explanation.

The claimant’s child suffered from an underlying health condition. The respondent had been made aware of this in January 2020 when the claimant had to take three days off work to look after her child. The claimant was later able to agree a flexible working arrangement which allowed her to finish at 3pm so she could be home for when her child came back from school. However, a couple of months into the arrangement, managers told her that her hours were having a detrimental effect on the business.

The respondent dismissed the claimant, citing her ongoing absences as the reason for dismissal, as well as the fact she had texted rather than telephoned regarding the incident in which she had to leave work suddenly. The respondent also said that that the claimant’s sudden exit to go and collect her child amounted to gross misconduct and confirmed that this was the principal reason for dismissal. The claimant was not given the opportunity to appeal.

The Employment Judge found that the respondent did not have an issue with the claimant needing time off, rather the way she reported her absence and the fact she left the office suddenly and without permission. The Employment Judge found that the text message the claimant sent to report and explain her absence was sent as soon as she was able and that it had been necessary for her to take the time off to care for her child. The Judge also pointed out that the leave amounted to one day which she felt was a reasonable period.

The claimant’s claim for unfair dismissal was successful.

What can we take from the judgements:

These judgements reinforce the family-friendly legislation that is in place to protect working parents, male or female; the right to request flexible working and have it considered reasonably, and the right to take a reasonable period of dependents’ leave. It is also important to note that these types of scenarios tend to affect female employees more due to the higher proportion of women who have primary childcare responsibilities.

As can be seen from the above, failure by an employer to have regard for such rights can put them at risk of awards being made against them. These cases are helpful for employers in terms of ‘what not to do’.

  • If a flexible working request is received, by either a male or female employee, these should be considered reasonably and if the employer needs to reject the request, it should fall legitimately under one of the 8 grounds of refusal listed in the legislation.
  • If an employee needs to leave work immediately due to an issue with a dependant, then they should not suffer a detriment because they have done so. The key to remember is that employees are entitled to a reasonable period of unpaid absence in these circumstances, and what is reasonable is entirely based on the individual circumstances.

For more information please contact Katie Hodson, Head of Employment on 0161 475 7670 or [email protected]

 

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