From 30 June 2014, the right to request flexible working will be extended to any employee with 26 weeks’ continuous service, regardless of whether or not they have caring responsibilities.
With these changes looming, a recently decided employment case, Solicitors Regulation Authority v Mitchell, has highlighted the risk of discrimination claims that employers may face when handling flexible working requests.
Solicitors Regulation Authority v Mitchell
Facts
This case concerns Ms Mitchell, who was an employee of the Solicitors Regulation Authority (SRA). Ms Mitchell was allowed to work partly from home to help with her childcare arrangements. Mr Singh, a male colleague in the same team (the ‘male comparator’), was allowed to work similar flexible hours as those worked by Ms Mitchell because he had a son with health difficulties.
A new manager took over the team, and on review of Ms Mitchell’s arrangements, revoked them. Ms Mitchell’s manager instead offered flexibility to allow her to do school runs, but only to work at home on an ad hoc basis. Ms Mitchell raised a grievance, which was rejected.
Following the rejection of her grievance, Ms Mitchell brought a claim for sex discrimination, on the basis that she had been treated less favourably than Mr Singh who, she claimed, was in a similar position to her.
Decision
Ms Mitchell won her claim for sex discrimination at the Employment Tribunal and this decision has now also been endorsed by the Employment Appeal Tribunal (EAT).
At the Employment Tribunal hearing, the SRA maintained that the reason why Ms Mitchell’s arrangement was reviewed and revoked/removed was in order to ensure that there were two people in the office and/or to ensure that other individuals could be offered flexibility.
In any discrimination proceedings, the task of proving discrimination lies initially with the employee. However, the burden of proof will reverse and shift to the employer if the facts show a prima facie case of discriminatory conduct. For this to happen, there has to be “something more” than evidence of unreasonable treatment coupled with a different protected characteristic, such as gender, age, religion etc.
In this case, the Employment Tribunal found that the “something more” was that Ms Mitchell’s manager (Ms Chambis) had given inconsistent evidence. For example, Ms Chambis was unable to demonstrate that she had spoken to all of the members of the team (either individually or at a team meeting) about the flexibility they needed to see if a rota could be set up. The Employment Tribunal also noted that Ms Chambis chose to focus on one member of the team rather than looking at the team as a whole and found that Ms Chambis did not provide any credible explanation as to why she did that. Ms Chambis also stated in evidence that she believed that she had an entitlement to revoke Mr Singh’s arrangements if required by the needs of the business. Ms Chambis did not explain sufficiently why she took action in relation to the claimant and not Mr Singh.
On appeal, the EAT held that the combination of a difference in gender between Ms Mitchell and Mr Singh, coupled with the finding that the SRA’s explanation had not been “full and frank,” brought into play the reverse burden of proof, so that discrimination could be inferred by the Employment Tribunal. In these circumstances, since the SRA had not provided a sufficient explanation for its treatment of Ms Mitchell, the Employment Tribunal had been entitled to conclude that the SRA had discriminated against Ms Mitchell.
The EAT also noted that the Employment Tribunal had found Ms Chambis’ evidence revealed other, more personal, and less justifiable motives which explained why she acted as she did. This meant that the Employment Tribunal could not place reliance on her assertion that the reason for the treatment was in no sense whatsoever gender-related.
Flexible Working Requests – Significance For Employers
This case highlights how employers can be exposed to discrimination claims when handling flexible working requests or changes to existing working arrangements. With the extension of the right to request flexible working looming, the risk of discrimination claims is likely to increase.
To avoid such claims, employers will need to ensure they have a credible explanation for any difference in treatment between one employee and another – unrelated to any particular protected characteristic such as sex, age, disability. The explanation should be reasonable and consistent and alternatives should also be explored as tribunals will examine the extent of the investigation undertaken by an employer before reaching a final decision when a request is made.
Furthermore, an employer’s reasoning should be appropriately documented. As this case highlights, if the tribunal does not believe your explanation, or your explanation is not clear (for example where it has not been properly documented), this could lead a tribunal to infer discrimination even if none exists.
Employers should also consider making changes to their flexible working policies to reflect the impending changes, ensuring that a well-reasoned and consistent approach is followed in dealing with requests.
For more employment law advice or to comment on this article, contact us to speak to a member of our employment law team.