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How refusing flexible working can be an own goal for employers

Flexible working policy concept. Piece of paper on table.

Two stories made the headlines this week relating to employers’ attitudes to flexible working.

In one instance, it cost a firm of London estate agents over £180,000 in employment tribunal compensation to an employee and in the other instance, it left a non-league football club appearing as if their mindset was stuck in the 1950s because of their alarmingly worded job advertisement.

Let’s begin with the employment tribunal case. Alice Thompson worked as an estate agent. She wanted to work shorter hours so that she could pick up her daughter. The employer, it seems, was not willing to consider her request.

She had been successful in her job and had worked hard to build up a strong reputation with clients. She went on maternity leave and upon her return, asked to work under a flexible arrangement which would include shorter hours, a four-day week, and leaving at 5pm, rather than the normal end-of-day at 6pm, in order to pick her daughter up from nursery.

It appears that the employer was unwilling even to consider this. What is unclear is to what extent the tribunal would have decided the case differently if the employer had properly considered the request but had rejected it on one of the prescribed grounds, such as inability to meet customer demand, for example.

The award of over £180,000 for indirect sex discrimination made the headlines, understandably. On the one hand, this should serve as a stark reminder to employers how important it is to handle flexible working requests properly and even-handedly. It is not just the risk of being taken to tribunal that should serve as the deterrent but also the loss of highly skilled members of staff in the process.

On the other hand, it would be reckless for employees in a similar situation to expect to receive six figure awards for discrimination. This award was very much the exception rather than the norm and reflected the relatively high salary level of the employee in question. It is also apparent from reported interviews with the employee that she paid significant sums in legal costs to reach a successful outcome.

On the same date this case was reported, AFC Fylde, a football team playing in the National League North (the sixth tier of English football) decided to put out their advert for a general manager to work alongside the director of football and to report directly into the chairman.

What caught the headlines was the extraordinary specification for the role. A good job advert always sells the employer to the candidate too.

AFC Fylde’s way of doing this was to state:

“This is a hands-on role and requires hands-on leadership from the front so delegators and office dwellers please don’t apply.”
“If not already apparent, we are not a Premiership club and therefore every penny and every fan has to be fought for and respected.
“We work hard at Fylde so again, don’t apply if you are looking for a work-life balance or have to pick up the kids from school twice a week at 15:30 BST.”

As many responses on Twitter and other social media outlets pointed out, the advert was not only a massive PR own goal, it was potentially unlawful and discriminatory. If an applicant who was female was put off from applying because of the wording above, this could amount to indirect sex discrimination. If a physically disabled applicant was put off by the comments about officer dwellers and delegators, there too could be a potential indirect discrimination claim.

What is perhaps telling is the nature of the social media responses once AFC Fylde deleted the advert and replaced it with a new job advertisement. The damage to their reputation was already done, as is the case these days with social media. Ironic responses on Twitter to the amended advert included questions as to whether applicants would have to sell their children or elderly parents before applying. Perhaps the overwhelmingly negative reaction at least shows that most people nowadays recognise that a work-life balance and flexibility over working hours are very positive things to have.