INDIRECT DISCRIMINATION THROUGH FLEXIBLE WORKING REQUEST REFUSAL

05 November 2012

In a recent case a retailer was found to have indirectly discriminated against a female employee by refusing her flexible working request on her return from maternity leave.

Ms Cooper (C) worked for House of Fraser (Stores) Ltd (H) as a full-time senior buyer in women's wear. Whilst C was on maternity leave, one of the brands on which she had been employed was discontinued and C could therefore not return to the same role on her return from maternity leave. C was offered a full-time senior buying role on a different brand. C wanted to work part-time on her return from maternity leave. The director of buying, Ms Hawes, did not believe this role could be carried out on a part-time basis and refused C's flexible working request. As there were no other vacancies, C resigned and brought a claim of sex discrimination.

The tribunal found that there was a "Provision, Criterion or Practice" (PCP) within the women's wear department that buyers should not work part-time. The tribunal found that, on the statistics shown to them, this PCP was potentially disadvantageous to women buyers as a group, as they were more likely to be the main carers for children. Further, the tribunal held that C herself was disadvantaged by this PCP and that H had failed to justify this PCP. Therefore, the tribunal upheld C's claim for indirect sex discrimination.

Pinsent Masons continues by exploring how employers can justify refusing flexible working requests in a retail round up briefing. Follow the link below to read their briefing.

Pinsent Masons Employment Update for the Retail Sector