The myriad of issues that might arise after an employee returns to work following a period of maternity leave can often cause tension for both employees and employers. Numerous polls have shown that many women feel their return to work is not handled well, or, at worst, they are discriminated against.

This month, the employment tribunal decided a case brought by Alice Thompson, an estate agent. She worked for a small independent firm, Manors, which specialised in overseas customers; Ms Thompson was considered by management to be successful in her role.

In 2018, Ms Thompson began a period of maternity leave. Before her planned return in 2019, she requested ‘flexible working’ as she wanted to return to work for four days a week rather than five. She also wanted to leave at 5pm every day rather than 6 pm, as her daughter’s nursery closed at 6 pm and was about an hour’s drive away from the office. Her request was refused, but the reasons given were not discussed with her or explained properly.

Ms Thompson therefore lodged a grievance about this refusal, as well as several other events which she said suggested that she had been treated less favourably because of her pregnancy. Her grievance was not upheld, nor was her appeal successful. Ms Thompson did not return to work after her maternity leave ended, as she was signed off by her GP with stress associated with the refusal to permit her to return on the hours requested, and subsequently resigned.

Ms Thompson brought various claims to the employment tribunal; she argued that the refusal to permit her flexible working request amounted to an act of indirect sex discrimination. Regular readers may recall that this requires an individual to demonstrate that an ostensibly neutral requirement adversely affects a group of society who share a protected characteristic, which cannot be objectively justified.

Ms Thompson argued that the requirement to work full time from 9 am to 6 pm placed women with children at a substantial disadvantage compared to men with children, relying on research which showed that 64% of mothers were the primary carers for their children. The tribunal accepted this, and also accepted that Ms Thompson herself was disadvantaged by not being able to leave at 5 pm to collect her child from nursery.

The critical factor was therefore the issue of justification. The employer had relied on various factors, including the need to meet customer demand, cost, and the inability to reorganise work amongst existing staff or recruit additional staff.

The tribunal acknowledged that success in sales relied on the development of long-term relationships with clients; working reduced hours might adversely impact such relationships if client queries could not be answered promptly – however, that depended on the reliability of the other members of the team.

The employer’s argument that the request would cost them up to 30% more in wages, having regard to paying additional salary and commission, was not accepted, as they had made no deduction for the fact that Ms Thompson would earn a lower salary and commission. As regards the issue of covering work, the employer had recruited a member of staff to cover Ms Thompson’s maternity leave, but retained her.

Ms Thompson argued this employee could cover her work for one day a week and also for the last hour of the day. The employer had not properly considered whether this arrangement could have worked, negating the need to find someone willing to work only one day per week (which the employer said would be impossible).

Ultimately, whilst the tribunal acknowledged the employer’s concern about changing the make-up of a successful team, they could not show that the refusal to permit Ms Thompson to work flexibly was proportionate to the needs of the business. Ms Thompson was, therefore, awarded £180,000 in damages and lost earnings.

This case demonstrates the importance of considering each such request individually on the facts, rather than making blanket assumptions about the impact of such a request. In this case, the additional hours could be covered in house rather than require further recruitment was a significant factor in the employer not being able to show that the refusal was reasonable.

Employees need to consider when making such requests about suggestions they may have on how their requests can be accommodated, and employers need to give these, and other alternatives, serious consideration. Failure to do so could lead to successful claims against them and significant awards for damages.

Safia Tharoo
Barrister, 40 Bedford Row, London