Flexible Working Requests and the Menopause – Employers Beware!
The issue of menopause in the workplace has been a growing issue in employment law in recent years and we are now seeing more and more cases on this issue working their way through the Employment Tribunal system.
The recent decision of Johnson v Bronzeshield Lifting Limited is yet another example of the potential pitfalls for employers when dealing with the issue of menopause, this time when cross-sectioned with a request for flexible working.
Flexible working request
Ms Johnson (J) worked as an administrator for Bronzeshield Lifting Limited (BLL), a crane hire company.
In January 2018, she started to experience menopause symptoms and agreed informally with BLL a ten-month arrangement of working four days a week, having each Wednesday off.
When this temporary arrangement came to an end, J submitted a formal flexible working request (FWR), this time requesting to have Fridays off. Her request expressly stated that she was making the request to help her cope with “menopause issues”.
At the meeting to consider the FWR there was very little discussion of the menopause issues. For instance, despite making express reference to the same within the FWR, J wasn’t asked how it was linked to her requested work pattern.
J’s request was declined on the basis that Friday was BLL’s busiest day and her work still had to be covered on that day. These grounds were in line with the eight statutory business reasons for refusing the request provided for in the relevant legislation.
However, no compromise of an alternative day off was offered.
J resigned and claimed direct disability discrimination and constructive unfair dismissal.
Direct disability discrimination
BLL accepted that J’s menopause symptoms amounted to a disability. Therefore, this was not something the Employment Tribunal had to determine as a preliminary issue (as if often the case).
The Employment Tribunal ruled that BLL had failed to take into account that J was experiencing menopause symptoms when determining the FWR and this was therefore direct disability discrimination.
It was held that BLL would have treated an employee with another medical condition, such as cancer, differently and so J had suffered less favourable treatment because of menopause (i.e. her ‘disability’).
However, an important distinction is to be drawn here; BLL’s decision to actually refuse J’s request was NOT direct disability discrimination, because this had nothing to do with her menopause. Rather, it was made on the basis that BLL needed an administrator to work on Fridays.
Constructive unfair dismissal
J also succeeded with her claim of constructive unfair dismissal.
The Employment Tribunal held that, by failing to consider the impact of her menopause when deciding the FWR, and making no effort to understand how it was affecting her and/or its relevance to the FWR, BLL had breached the implied term of trust and confidence, and J had resigned in response to that repudiatory breach of contract.
So where did the Employer go wrong here?
In short, failing to take any account of the menopause issues which J expressly referred to when making the FWR.
Because of this failure, they were deemed not only to have forced J to resign her employment but also to have subjected her to direct disability discrimination.
As this case shows, it’s not just the outcome of a FWR that is subject to scrutiny. It matters how you deal with it too. As this case highlights, even if an employer can show one of the eight statutory business reasons for refusing the request applies, this does not mean you are ‘home and dry’; you could still find yourself on the wrong end of an Employment Tribunal claim if you’ve handled it badly.
What should employers faced with a similar situation do?
If an employee may have a disability (menopause or otherwise) and they make a FWR which appears linked to the same, make sure that you investigate any health issues when considering their FWR by asking questions to understand how their disability affects them and why their requested work pattern would help them cope with their symptoms. See if a link between the two can be established.
If there is a link and the requested working pattern would help alleviate any consequences of their disability, you should ordinarily approve the FWR. By approving any such work pattern an employer is also like to be protecting themselves from a claim for failure to make reasonable adjustments. Your duty to make reasonable adjustments is separate to the right to request flexible working.
As this case shows, it’s not only the outcome of a flexible working request that matters but also how you deal with it.
Even if you can show one of the eight statutory business reasons for refusing the request, you could still find yourself on the wrong end of a constructive dismissal claim (even absent any disability issues) if you’ve handled it badly.
How can we help?
If you are an employer or employee affected by the above issue and want advice or support in connection with the same, or any employment law or HR issues more generally, please do not hesitate to get in contact with us.
Our Employment Law team is headed up by Lloyd Clarke, a Partner of the firm, who oversees a team of lawyers and paralegals who would be happy to assist. Please call: 01206 766333 or contact Lloyd on [email protected]
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