The Employment Appeal Tribunal (EAT) has held in Glover v Lacoste UK Ltd that the decision at a flexible working appeal hearing to offer a female employee a fully flexible working pattern was a provision, criterion or practice (PCP) that could cause disadvantage or detriment, despite the fact that it was never applied in practice.
Ms Glover was employed full-time as an assistant store manager working five days a week flexibly as set out in a rota. She went on maternity leave in March 2020 and, during her maternity leave her store closed temporarily due to the pandemic. She made a flexible working request in November 2020 asking to work three days a week and her request was rejected. She appealed the rejection of her request and was offered the chance of working part-time four days a week, to be offered flexibly on any day of the week including weekends. This was offered on the basis of a six-month trial, but she did not feel that the requirement to be fully flexible could be reconciled with childcare arrangements. Her solicitors wrote to Lacoste asking for her request to be reconsidered and in April Lacoste agreed to her original request. She returned to work two days later and subsequently presented a claim for indirect sex discrimination.
The tribunal dismissed her claim on the basis that no PCP requiring fully flexible working had been applied to Ms Glover and so she did not suffer a disadvantage. Ms Glover appealed claiming that the argument that if a discriminatory decision is overturned on appeal then the discrimination disappears is manifestly wrong. The EAT upheld the appeal. It reasoned that, once a flexible working application is determined, the PCP is applied even if the employee has not returned to work and attempted to work under the new arrangement. The EAT remitted the matter to a freshly constituted tribunal to consider whether Ms Glover was subject to disadvantage or detriment by the application of the PCP requiring fully flexible working. The employment judge commented that it was hard to see on what basis it could be held that Ms Glover suffered no disadvantage or detriment when her appeal was determined against her and she felt she had to consider resigning.
Take note: The decision in Glover shows how important it is for employers to deal carefully with flexible working requests. Although there was a successful appeal against the arrangement offered by the employer as an alternative and the employee never actually had to work under the arrangement proposed, the EAT still held that a disadvantage had been suffered at the point that the request was rejected. However, if an employer subsequently overturns its decision it's likely that the compensation awarded to an employee will be decreased significantly.
