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Play fair with flexi working or pay the penalty, employers warned
09 Sep 2021

A job advert from football club AFC Fylde caused a stir on social media this week, after its ill-conceived role description for a general manager was shared on Twitter as an example of discrimination in the workplace.

The advert stated that the club was looking for hard workers and discouraged applications from those ‘looking for a work life balance’ or those who ‘had to pick up the kids up from school’.

The controversial advert has – not surprisingly – been taken down from the Jobs in Football website as many people rightly complained that it discriminated against working parents and in particular women, who are often the primary caregiver.

With many parents now back to juggling their day job and childcare after the summer break, the AFC Fylde story highlights the importance of fairly treating employees who request flexible working hours and ensuring these workers remain valuable members of the team, says Julia Fitzsimmons, head of the Employment team at FBC Manby Bowdler.

During COVID, many businesses embraced flexible working models which allowed staff to work from home while necessary. This required some input from the employer, for example monitoring health and safety at home and taking steps to ensure staff members’ mental health, but overall it was a positive experience and many employees enjoyed their newfound work life balance.

Most physical workspaces are now open for business, but it is expected that a full return to the office for everyone is unlikely and employers will see an uplift in requests for flexible or hybrid working.

While there is no legislation which can force a company to allow hybrid working patterns, the law does protect workers against discriminatory working practices and inflexible working requirements. This was proven in a case this week of a former estate agent who was denied flexible working hours to collect her child from nursery.

Own goal for estate agency

Alice Thompson successfully pursued the case against her former employer Manor Estate Agents for indirect sex discrimination as the company refused to consider her request to work a 4-day week and to finish at 5pm. She was awarded £185,000 by the employment tribunal.

Women still undertake the majority of childcare provision and therefore can claim indirect sex discrimination if an employer adopts rigid working practices without good reason or which do not take into consideration childcare requirements.
 
This doesn’t mean that an employer can’t reject a request for flexible working. Whilst all qualifying workers have the right to request flexi hours, employers can still refuse a request as long as the reason is listed within the statutory framework. Valid reasons could include the increase in costs of additional employees or if the flexible working would have a detrimental effect on customer service.

Indirect sex discrimination claims however are harder to defend – as Manor Estate Agents found to their detriment – as an employer needs to show that they had considered possible alternatives to their original position and the impact of their working requirements on the particular individual.

Show discrimination the red card

Employers must be very careful about the indirect consequences of their words and actions which could be deemed to discriminate. Advertising for staff using phrases such as “dynamic, energetic” and suggesting that your business has a “work hard, play hard” culture can be seen to exclude older workers and imply out of hours work events are a requirement thereby excluding women with childcare arrangements, workers who don’t drink for religious reasons, people with disabilities who may not be able to work long days and people at risk from confined social gatherings.

The same goes for flexible working policies and hybrid working arrangements. These should be used to maximise employee engagement rather than excluding groups or individuals who would benefit from a more flexible approach to their hours. Aside from losing valued members of staff, refusing flexi working requests without proper consideration could result in an expensive discrimination judgement.  

If you would like to review your flexible or hybrid working policies, get in touch with Julia Fitzsimmons on  01952 208420 or email Julia.fitzsimmons@fbcmb.co.uk  for further advice on how to make your workplace more inclusive and compliant.

Meet Julia Fitzsimmons