Analysis Of The Week: Sex Discrimination in the Workplace​

By Alison Catchpole​


The Story

When estate agent Alice Thompson applied to her Mayfair-based employer for flexible working after the birth of her daughter in November 2018, her company boss refused. She had been earning around £120,000, but her request, to enable her to meet her childcare obligations, was turned down without negotiation, so she resigned at the end of 2019 and took legal advice. Her claim for indirect sex discrimination succeeded. The London Central remote hearing awarded her £184,961 in an employment tribunal.

The figure reflected loss of earnings, loss of pension contributions, £13,500 for injury to feelings, and interest.

The Background

Sex discrimination occurs when someone is unfairly disadvantaged for reasons related to their sex. Employment tribunals - independent panels whose decisions are legally binding - were introduced under the Employment Rights (Dispute Resolution) Act 1998.

As noted in Forbes, “before Covid-19, employment law moved slowly and predictably…. law firms aren't well suited for the frequency of change that employment law has experienced”. Indeed, the legal landscape is shifting. Employees have proved they can work from home during the pandemic and many employers are adapting.

Under current rules, derived from the Employment Rights Act 1996 and Flexible Working Regulations 2014, employees can ask for a change to the structure of their work after 26 weeks of employment. In September, the government announced new proposals that would mean employees may do this from their first day of employment (Financial Times). The changes can be refused, but only if certain prescribed grounds come into force (Nelsons).

Thompson’s boss Mr Sellar cited (1) the burden of additional costs; (2) the detrimental effect on the ability to meet customer demand; (3) the inability to reorganise work among existing staff; (4) the inability to recruit additional staff; and (5) planned structural change.

The tribunal found that under the Equality Act (Section 19) the refusal of the proposed reduction in hours was disproportionate, but inflexibility is commonplace. A 2019 poll from trade union federation, the Trades Union Congress, found that 30% of requests for flexible working were being turned down (TUC). The survey also showed that 64% of people in “working-class occupations”, and 58% overall are in occupations where flexible working is not available to them.

What It Means For Businesses And Law Firms

Tribunal panels are no pushovers, as the Thompson hearing shows. The claimant alleged that her boss had commented “I thought [...] why is she pregnant when we are doing so well? I was warned about employing a married woman of her age”, though this was denied.

The frankly expressed opinions of the participants are matched by those of a clearly underwhelmed panel, who report: “The respondent’s representative was unable to supply any electronic page numbers, and was prompted throughout the hearing by counsel for the claimant,” and “We take time to complain about this because both Peninsula [for the respondent] and Slater Gordon [for the claimant] solicitors are frequent flyers in the employment tribunal”.

Significant reputational risk is not just about shoddy paperwork, and corporate giants seem especially keen to keep their powder dry. In 2019, US financial media outlet Bloomberg analysed data from the UK government’s Employment Tribunal website and found that hundreds of workers who file sex discrimination grievances in UK courts settle. Out of 3,585 sex-discrimination suits in total, 2,195 suits were dropped before court rulings in the previous two and a half years. Notably, out of 91 suits in the finance sector, at least 71 “later vanished into the ether”. Barclays Plc, HSBC Holdings Plc, JPMorgan Chase & Co and Banco Santander SA were all on the list of respondents multiple times.

Jo Keddie, Senior Partner at Winckworth Sherwood, told the Financial Times: “This is a timely reminder that employers will need to do more than rely on the statutory reasons for refusing a flexible working request”. Alice Thompson stood her ground to pursue what she felt rightfully owed.