redmans-blog-analysisIn the case of Smith v Gleacher Shacklock LLP ET/2202747/2015 an Employment Tribunal held that an investment firm’s requirement that a new mother work full-time was not discriminatory in nature as the needs of the business outweighed the minor disadvantage that the employee suffered by having to work full-time.

Ms Smith, a single parent working for the investment firm Gleacher Shacklock LLP, was returning to work after maternity leave. The firm operates in a “demanding” and competitive environment and has a relatively small team (48 professional staff and 11 administrative staff), which means that its staff are often required to work late and at weekends.

Ms Smith’s role at the firm was as executive secretary and she undertook managing day-to-day logistics for two partners (Mr Binks and Mr Cumming-Bruce) and three senior partners at the firm – this role included acting as a Human Resources administrative support, typing, and answering the telephone. Ms Smith’s evidence in the claim was that 70% of her role was ‘predictable’ whereas 30% of her role was ‘unpredictable’; unpredictable work included requests from the Financial Conduct Authority (“FCA”) and assisting the partners with fast-moving commercial deals.

Upon her return from maternity leave Ms Smith made a ‘flexible working request’: she asked that her role be changed from a full-time role in the office to a four-day-a-week role (with three days in the office, working at home on Thursday, and not working on Friday). Ms Smith said that this arrangement would be preferable as she could arrange for relatives to look after the child Monday to Wednesday, for the child to be taken to a nursery on Thursday, and for Ms Smith to look after the child on Friday.

Ms Smith’s request for flexible working was rejected by Mr Binks on the following grounds: the fact that it was important for clients of the firm to have single point of contact; the unpredictability of her role; and the pressure that this would place on other team-members to undertake normal tasks. Mr Binks offered the compromise that Ms Smith could leave work early on Thursday and Friday to pick up her child from the nursery.

Following the rejection of her flexible working request Ms Smith appealed the decision to Mr Cumming-Bruce. Potential compromises were discussed during the appeal, with Ms Smith amending her request to working three days per work but bringing in an employee who could job-share for the other two days. Mr Cumming-Bruce rejected this outcome, stating that handing work back and forth would not be productive or conducive to the firm’s needs. He also agreed with Mr Binks that Ms Smith not working full-time could prove disruptive to the business, pointing out examples where this had happened, and rejected Ms Smith’s request for flexible working. He did, however, offer Ms Smith extra paid leave to make childcare arrangements and suggest that she could initially return to work on a part-time basis.

Upon the rejection of her appeal Ms Smith made claims to the Employment Tribunal for breaches of flexible working legislation and for indirect sex discrimination.

In a claim heard earlier this year the Employment Tribunal rejected Ms Smith’s claims: it rejected the claim for breach of flexible working legislation on the basis that her employer had not refused her requests on the basis of incorrect facts; and it rejected her claim for indirect discrimination on the bases that Ms Smith had not suffered a particular disadvantage (principally, the Employment Tribunal held, as she would in fact have been ‘better-off’ financially working full-time and using the nursery services on Thursday and Friday) and that the Tribunal believed that the business’ position was justified (as the disruption caused to the business by implementing such an arrangement would have outweighed the “minor” disadvantage to Ms Smith).

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case goes against the grain of the current case law on flexible working for women on return from maternity leave, and it may therefore be that the outcome of this case is appealed by the Claimant. In the modern, technological working environment employers need to ensure that its policies and procedures do not discriminate against new mothers looking to return to work.”

About Redmans Employment Team

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

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