In a recent employment tribunal case, PricewaterhouseCoopers (PWC) were found to have discriminated against a male employee when turning down his request to work flexibly so he could spend more time looking after his daughter.
This case serves as a reminder for employers to recognise that men are entitled to request to reduce their hours to take on greater childcare responsibilities in the same way as women. To avoid claims of sex discrimination, employers must approach flexible working requests from men in the same way as requests from female staff.
Mr Pietzka worked full time for PWC in Cardiff. In November 2010, he made a flexible working request to work part-time, three days a week, so that he could spend two days with his daughter who now lived in Bury St Edmunds. He had separated from his wife.
Mr Pietzka’s request was declined. The manager hearing the request said his application would hinder his career prospects. The same manager subsequently prevented Mr Pietzka’s promotion at annual review.
Mr Pietzka successfully claimed sex discrimination as the tribunal was satisfied that women requesting part-time work at PWC were treated more favourably.
The right to request flexible working was amended from 30 June 2014 so that any employee can make a request. Previously only parents with children up to the age of 18 could apply. The new regime abolished the prescribed statutory procedure for dealing with flexible working requests and replaced it with an obligation to deal with requests in a ‘reasonable manner’. For guidance on this, ACAS produced a code of practice on dealing with flexible working requests (the Code).
The Code is brief, just 15 paragraphs over three pages, and offers little practical guidance beyond setting out what was previously contained in the statutory procedure. The advice for employers is that requests should be dealt with in the same way as before, including a meeting with the employee, a prompt response and an opportunity to appeal.
Providing an employer does this, there is little redress for an employee under the statutory scheme. An employer turning down a request just needs to show that they have followed the basic elements of the procedure, and cite one of the prescribed business reasons for turning down the request, in order to satisfy a tribunal that it has dealt with the application in a reasonable manner. Only if the decision was based on incorrect facts could an employee in this situation pursue a claim that their request had not been properly dealt with.
This limit on a tribunal’s ability to investigate the fairness and reasonableness of the employer’s decision to refuse a request has led some commentators to describe the right as a toothless one for employees.
The only substantive claim that an employee may have if their flexible working request is turned down is if they can claim that the decision was based on discriminatory grounds. This is what Mr Pietzka did.
Quite often such a claim will relate to sex discrimination of a female employee, who might argue that a job being required to be full time is indirectly discriminatory against women, who are still more likely to bear the burden of childcare responsibilities than men.
As Mr Pietzka demonstrated though, this avenue is equally open to men too, although his claim was based on direct sex discrimination on the basis that his employer looked more favourably upon flexible working requests from women. This led the tribunal to conclude that he had been treated differently because of his gender.
The tribunal’s decision is consistent with the guidance from ACAS in the Guide to flexible working (the Guide), which supplements the Code. The Guide provides an example of direct discrimination at page 14 as follows:
“Andrew asks for flexible working to care for his children. Although the employer regularly allows women employees flexible working for this reason, he refuses Andrew’s request because he is a man and believes childcare is less important to him. This is likely to be direct sex discrimination.”
The key message for employers is that they must be open to the idea of flexible working requests from men wanting to take on greater childcare responsibilities. Managers should be trained to ensure that flexible working requests from men are treated in the same way as those from women and not to assume that the default position is that a new mother will reduce her hours while her partner carries on working full time.
Ben Stepney is an Associate in the Employment team at Thomson Snell & Passmore.
