Smith v Gleacher Shacklock LLP – May 2015

What happened?

A single parent employee at an investment bank (Ms Smith) made a flexible working request prior to her return from maternity leave seeking to work three days per week in the office, work from home on Thursdays and to not work on Fridays at the investment firm Gleacher Shacklock LLP. Her role was an executive secretary, and she undertook managing day-to-day logistics for two partners 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’. The employer rejected this request using examples and citing the impact on the ability of the organisation to look after its clients, as well as the unpredictable nature of the claimant’s role, the strict timescales for various tasks, and also the disproportionate pressure it would place on others in the small team.

The claimant appealed the decision, and 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.

The Hearings

The tribunal rejected her claim for infringement of the flexible working legislation and determined that it was not indirect sex discrimination to require the mother to work full time. The provision or requirement for roles to be carried out full time by one employee did not place the employee at a particular disadvantage, this is because the excessive demands on her time and energy were an everyday reality for parents rather than a particular disadvantage for the claimant.

Take away points

• Employers should follow the ACAS code of practice on handling flexible working requests and ensure the reason for refusing the request is one of the specified reasons allowed in the legislation.
• If refused, the refusal letter should identify the relevant grounds and any factual evidence supporting the business grounds that apply.
• Indirect discrimination claims are the hidden risk to employers that refuse a flexible working request. If an employee can offer evidence that the pattern of work refused causes a particular disadvantage to women over men, then a tribunal might find that such a provision is discriminatory.

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