UK court rulings support flexible working for parents
Returning to work and childcare
Employers are not required to provide flexible working
arrangements to accommodate childcare arrangements but are required to
reasonably consider requests. How this works is shown by these recent cases in
the UK court system with significant financial awards.
On 28th September 2021 Sean Seddon reported in the Metro about Chloe Daly, a flight attendant who was discriminated against by British Airways after she requested changes to her working hours following the birth of her premature baby. She asked to reduce her hours by 25% and to agree set working days because she was unable to find childcare options to fit around her schedule. However, her employer BA City Flyer, a company wholly owned by British Airways, declined and made claims it would harm team morale.
During the hearing, it was reported that the airline was unable to provide any evidence it had ever granted permission for a new mother to alter their working hours. Now an employment tribunal has ruled in Mrs Daly’s favour and awarded her more than £38,000.
The report states the hearing found that the airline was ‘resistant’ to flexible working patterns to accommodate childcare responsibilities and said it was guilty of sex discrimination.
It was reported that Chloe Daly, from Essex, had worked as an in-flight business manager at BA City Flyer’s London City airport headquarters for nearly a decade. She was one of five people working in that role and would fly as cabin crew two days a week, as well as line-managing other staff. After falling pregnant in late 2016, she could no longer fly and was permitted to work from home part time before going on maternity leave in August 2017.
Chloe Daly’s daughter was born six weeks early and had serious health problems, putting the family under a great deal of stress. The report states she struggled to find affordable childcare options ahead of her planned return to work in August 2018 and offered to try out her proposed new hours over a six-month trial period to see if the new arrangement would work for both herself and her employer. She revealed she herself had turned down flexible working requests in her role as a manager and was unsurprised her application was rejected as she felt the company ‘was overall very resistant to granting flexibility’.
In the report she claimed cabin crew who fell pregnant usually left at the end of their maternity leave or shortly after returning to work. The report states that her bosses rejected her flexible working request, stating: ‘There may be a negative impact on morale within the team if they had to manage situations that may arise in your absence in addition to their current workload’. It is reported that when she fell pregnant again towards the end of her maternity leave, she resigned from the company, penning a furious letter to her superiors. She wrote: ‘…it is with great sadness that after giving [BA City Flyer] flexibility, hard work and dedication for ten years that I feel I have been given no option but to resign from my loved role…’
It is reported that employment judge David Massarella sided with Mrs Daly and said there was no evidence granting the request would have harmed team morale. It was found that BA was also unable to provide convincing evidence that any female cabin crew staff returning from maternity leave had ever been permitted to change their working hours. The report states he said: ‘[BA] was open to flexible working requests when they arose out of medical circumstances, but resistant when they arose by reason of childcare responsibilities.’
The judge found the refusal of flexible working amounted to indirect sex discrimination because ‘part-time working, and a more predictable working pattern, are often of particular benefit to women’.
On 1st October 2021 Jane Croft reported in the Financial Times about Alice Thompson, previously employed as a Sales Manager for a small independent London-based estate agents. It is understood that she became pregnant in October 2018, and subsequently commenced maternity leave. Upon her return to work, it is understood that she submitted a flexible working request to shorten her hours to work a four-day week, and to finish at 5pm rather than the business’ standard finishing time of 6pm.
The basis for the request is understood to have been that her new childcare responsibilities would require her to collect her daughter from nursery throughout the week. It is understood that the company declined her request for flexible working, on the basis that the company could not afford for her to work part-time.
Alice Thompson subsequently resigned from her employment and commenced proceedings against her employer within the employment tribunal, for pregnancy and maternity discrimination, harassment, unfair dismissal and indirect sex discrimination.
It is reported that during the hearing it was heard that management had exhibited a negative response to her pregnancy in 2018. It was alleged that a Company Director had said to a colleague at a party: “I was warned about employing a married woman of her age.”
It is reported that the Alice Thompson confirmed the details of her maternity leave in October 2018 and provided management with a document pertaining to her 11 ongoing deals for which she had anticipated to receive commissions. However, the company decided that she would only receive commission on those deals registered within the document up to her last day prior to the commencement of her maternity leave and those completed after she returned to work.
Additionally, Alice Thompson claimed that she was made to feel as though she was leaving the business when she commenced her maternity leave, due to the fact that she was informed to return her office keys and mobile phone.
It is reported that the employment tribunal who heard the case upheld the employee’s complaint of indirect sex discrimination. The tribunal accepted that ‘notwithstanding an encouraging shift in societal attitudes, it is still the case that mothers are more likely to carry primary responsibility than fathers’, with reference to the report of 2018, conducted by Direct Line Insurance, titled: ‘Battle of the sexes – Mums still bearing the brunt of childcare’.
These cases highlight the importance of considering submitted requests,
whilst following a fair process for that