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The high cost of refusing flexible working requests

Refusing to properly consider flexible working requests can come at a high price.

A young mum has been awarded almost £185,000 by an employment tribunal after her employer refused to consider her request for flexible working.

On returning from maternity leave after the birth of her daughter, Alice Thompson had asked her employer if she could work shorter hours so that she could pick up her daughter from nursey.

Her request involved a four-day week, leaving at 5pm instead of the usual 6pm. This was flatly refused by her employer, Paul Stellar, who said that the business couldn’t afford for her to work part-time.

Alice said that she had proposed hours that would have worked for her, but she would have been happy to discuss a ‘counter offer’ of what would have worked for the firm. When her request was refused she was left with no alternative but to resign.

Alice, who was a sales manager at Manors, a small independent estate agent in Marylebone  London, told BBC Radio 4’s Woman’s Hour that she had put her heart and soul into her estate agency career for more than 10 years. She said: That’s no mean feat, it’s quite a male dominated environment to work in. And I’d worked really hard to build relationships with clients.”

Her claim was upheld by the tribunal who ruled that she had suffered indirect sex discrimination and had been put at a disadvantage by the refusal. The judge awarded her £184,961.32 for loss of earnings, loss of pension contributions, injury to feelings and interest.

Alice added: “How are mums meant to have careers and families? It’s 2021 not 1971.” I have a daughter and I didn’t want her to experience the same treatment in 20,30 years’ time, when she’s in the workplace.

Sarah Naylor, employment law specialist at Atherton Godfrey, commented: “Employers are legally obliged to properly consider all requests for flexible working, particularly where children or caring duties are involved.

“To be eligible to apply for flexible working, an employee must have worked for the employer for at least 26 weeks. The employer does not necessarily have to agree to the request but cannot refuse without a valid business reason. Where the proposal does not fit with business operations, an alternative pattern of work may be suggested.

“Once agreed, the flexible working arrangement cannot with withdrawn or altered without the employee’s consent, unless there is a flexibility clause contained within the agreement.”

If you need confidential legal advice on any aspect of employment law, either as an employer or an employee, call and speak to our friendly team – 01302 320621 or email info@athertongodfrey.co.uk

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Uber loses legal battle against taxi drivers

Uber could be hit with a string of compensation claims after it lost its latest court appeal.

The taxi giant has been in a long running legal battle with its drivers over whether they should be classed as workers or contractors.

In 2016, an employment tribunal ruled that the drivers were in fact workers. That ruling was upheld by an employment appeal tribunal and later by the Court of Appeal.

However, the Uber legal team took the case to the Supreme Court, where they argued that the drivers did not undertake work for Uber, but were independent third-party contractors, and therefore not entitled to workers rights.

Sarah Naylor, employment law specialist, commented: “The Supreme Court decision is final. Uber has exhausted all the legal avenues now, and so must provide drivers with guaranteed employment rights and benefits.”

Sarah added: “These rights include statutory sick pay, national minimum wage, paid holidays and regular breaks.

“It is a landmark decision which will no doubt be welcomed by millions of people employed in the gig economy, who may also decide to pursue their rights as workers.”

The gig economy is a popular term for those employed on short-term contracts or doing freelance work and carrying out several jobs, or gigs. Growth in this area has been accelerated by Covid-19.

Speaking after the ruling, Mark Cairns, a London based Uber driver, commented: “It’s been a long time coming, but I’m delighted that we’ve finally got the victory we deserve.

“Being an Uber driver can be stressful. They can ban you from driving for them at the drop of a hat and there is no appeal process.

“At the very least, we should have the same rights as other workers and I’m very glad I’m part of the claim.”

The ruling could see thousands of Uber drivers eligible to claim around £12,000 in compensation.

If this ruling affects you or you have any issue regarding your employment rights, call us on 01302 320621 or email info@athertongodfrey.co.uk 

 

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References and discrimination claims

Author: Sarah Naylor

References can be a tricky thing for employers. Let’s start with a brief overview of the legal position on references:

  • A business isn’t legally required to provide a reference if asked, you can refuse to give one
  • If a reference is provided, it should be factually correct

The question often is how much information to put in a reference, and will it put your business at risk. As a result, most businesses will tend to only give brief factual information in a reference, giving employee name, job title and dates of employment. The risk of a reference being factually incorrect is that a business could be open to their former employee bringing legal claims against them.

If you are considering giving more detailed information than this in a reference, it should be done with care.

The recent Employment Tribunal case of Mr P Mefful v Citizens Advice Merton and Lambeth is an excellent illustration of the risks when giving references to prospective employers. The Tribunal found that an employee was discriminated against by their former employer after the reference they gave painted a misleading picture of his past sickness absence.

The case involved an employee who had taken two long periods of sickness absence during his employment with Citizens Advice. He was made redundant and brought a successful unfair dismissal claim against Citizens Advice. The employee was subsequently offered a new job with another employer, and that prospective employer requested a reference from Citizens Advice.

Citizens Advice gave a reference and included in it the following key details:

The employee’s sickness absences in detail
Responded “no” to the question of whether they would re-employ him
Failed to explain why they would not re-employ him and
Failed to answer any questions about his performance

The job offer was withdrawn on the basis of the reference as the prospective employer did not look favourably upon the sickness absences and they were influenced by the statement that Citizens Advice would not remploy him. As a result of this, the employee brought Employment Tribunal claims against Citizens Advice for victimisation and discrimination arising from a disability.

The Employment Tribunal agreed that the employee had been discriminated against for the following reasons:

  • The figures given in the reference for the sickness absences were in accurate and significantly overstated. The Tribunal also criticised the failure to explain the employee’s disability and the impact this had upon his absences.
  • The Tribunal considered that the reference was negative as a result of the claims he had brought against Citizens Advice when he was made redundant.  The Tribunal therefore found that the failure to answer some of the questions was purposely intended to reflect the employee in a bad light and to cause the prospective employer to view the employee negatively; and
  • The reference failed to provide a balances or fair picture of the employee’s time spent working for Citizens Advice

The case illustrates the importance of taking care when giving references, particularly in respect of leavers who may have alleged or brought claims against their former employer. Former employers sometimes find themselves in a difficult position when asked to provide a reference. They owe competing duties to both the former employee and the prospective employer and the consequences of providing a reference which is not fair, accurate and misleading can be costly.

Employers who choose to provide detailed references should always ensure they are fair, balanced and factually correct.