A new working pattern can be found to be a Provision, Criterion or Practice (PCP) that has been ‘applied’ for the purposes of an indirect discrimination claim, even where an employee has not actually had to work under this arrangement.
In the recent case of Glover v Lacoste UK Ltd, the Employment Appeal Tribunal has held that an employee can be disadvantaged by a PCP even if they never have to work on this basis. In our article below we consider the case and what this means for employers.
Ms Glover was employed by Lacoste UK Ltd as an assistant store manager on a full-time basis, working five days a week flexibly on a rota. In March 2020 Ms Glover went on maternity leave. Before returning to work Ms Glover made a flexible working request to work three days a week which was rejected by Lacoste on the basis that managers were required to work full time, but she was offered a right of appeal. Ms Glover decided to take accrued annual leave and was then on a period of furlough delaying her return date.
Whilst still on furlough, Ms Glover appealed against the rejection of her flexible working request, and this was partly upheld. As a result, she was told she could return on a trial basis working on a rota basis 4 days a week, which had to be worked flexibly on any day of the week including weekends. Ms Glover was not happy with this arrangement as the requirement to work flexibly on different days week to week would cause issues finding childcare and in response she told Lacoste that if they did not reconsider her request she would have no option but to resign and claim constructive dismissal. Lacoste subsequently agreed to the original request and she returned to work on the working pattern she initially requested.
Employment Tribunal Decision
Ms Glover brought a claim against Lacoste for indirect sex discrimination on the basis that Lacoste required fully flexible working which was a provision, criterion or practice (PCP) that disadvantaged women and in particular put her at a disadvantage. The Employment Tribunal (ET) dismissed the claim on the basis that previous case law held that there was no indirect discrimination if the PCP had not been applied to the employee and they did not suffer any disadvantage or detriment. It found that Ms Glover had not suffered a disadvantage or detriment because the PCP had not actually been applied as by the time she returned to work, her original request had been accepted. It was noted that she may have been distressed with the prospect of having to resign due to not being able to find or afford suitable childcare to be fully flexible, however in practice she was not actually required to do this.
Ms Glover appealed to the Employment Appeal Tribunal (EAT) on various grounds including that the previous case law relied upon, that if a discriminatory decision is overturned on appeal then the discrimination disappears, was manifestly wrong and should not be followed.
Employment Appeal Tribunal Decision
The EAT held that the ET’s interpretation of the previous case law was not correct. It held that instead the case was authority that the determination of a flexible working application did constitute a PCP and that the PCP is applied even if an employee has not returned to work or attempted to work under the new arrangement. It noted that it cannot be the case that an employee does not suffer a disadvantage or detriment because they have not returned to work. If this were the case, it would mean the more discriminatory the PCP, the less likely an employee would return to work and the less likely the PCP would be held to have been ‘applied’ by an employer.
The case has been remitted to a fresh Tribunal to consider but in doing so the EAT commented that whether or not Ms Glover had been subjected to a disadvantage or detriment by application of the PCP to work fully flexibly was a question for the Tribunal and that there was more than one possible answer.
This case provides clarity that the successful appeal of a flexible working request decision doesn’t remedy any disadvantage or detriment suffered as a result of the initial request being rejected/a revised pattern being offered. Further, that this is the case even where an employee had not actually had to work under the working pattern they are alleging is discriminatory. In this case, the offer made by Lacoste for Ms Glover to work 4 days a week, fully flexibly, was clearly an attempt by them to compromise but this had the opposite effect. Ms Glover was never actually required to work under this PCP but the EAT’s decision has made it clear that this is not a pre-requisite for her to be able to bring an indirection discrimination in respect of this.
For more information on flexible working requests see our blog: D-BRIEF – Employment & Pensions Blog: Flexible Working or contact a member of the Employment Team.