| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
No Going Back: EAT Decision Shows Why it’s Crucial to Treat Flexible Working Requests with Care
A woman who claimed sex discrimination after her flexible working appeal was refused suffered a disadvantage, even though her employer later made a U-turn on its decision, the Employment Appeal Tribunal (EAT) has ruled. This is a worrying ruling for employers, as it shows it may not be possible to undo a discriminatory decision and you may face litigation even if you subsequently ‘do the right thing’. Here, I look at what happened and how you can reduce the risk of a similar claim.
What Happened?
In Glover v Lacoste UK Ltd [2023] EAT 4, Ms Glover was an assistant store manager. She worked 5 days a week, with her working pattern varying according to a rota – something Lacoste termed ‘fully flexible’ working.
Before returning to work after maternity leave, she asked to work 3 fixed days a week. Lacoste refused her request and, when she appealed, it offered her 4 days a week, to be worked on a fully flexible basis on any day of the week, including weekends. Ms Glover said this would make it impossible to arrange childcare.
She then instructed solicitors to write to Lacoste asking it to reconsider or she might have no option but to resign and claim constructive dismissal.
At this point, Lacoste reversed its decision and gave Ms Glover the hours she had originally requested. Despite this, she went ahead and claimed indirect sex discrimination.
What Does the Law Say?
A female employee or worker can bring an indirect sex discrimination claim if she can show you have a ‘provision, criterion or practice’ (PCP) in place which you apply to everyone but which disadvantages women. You can defend such discrimination if you can show you had a good business reason and acted proportionately.
Here, Ms Glover claimed that the requirement for all managers to work a fully flexible working pattern was a PCP which disadvantaged her as a working mother.
What Did the EAT Decide?
The employment tribunal rejected Ms Glover’s claim because she never actually had to work the fully flexible hours on her return from maternity leave. She didn’t therefore suffer any disadvantage.
The EAT overturned the tribunal’s decision. It didn’t matter that Ms Glover did not ultimately work under the fully flexible arrangement. Moreover, it was hard to see how she was not disadvantaged by the outcome of her flexible working request, given that she had to consider resigning. The EAT sent the case back to a new employment tribunal to decide on compensation and outstanding issues.
Key Lessons
Once you’ve committed a discriminatory act, you can’t, legally speaking, go back and cure it. It’s therefore important to train managers to consider flexible working requests by working mothers carefully. If a manager identifies any barriers to accepting the request, they should consult with the employee and try to find ways to overcome them. If they ultimately reject the request, or don’t accept it in full, they should keep a detailed record of their reasoning and their attempts to find a solution.
If on appeal or subsequently, this turns out to be the wrong decision, it’s still important to rectify the mistake. This is because:
- This will make the employee much less likely to bring a tribunal claim, even though this case shows they’re entitled to.
- If the employee does bring a claim, their compensation is likely to be significantly reduced.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Check You’re Paying the Correct Rates and Thresholds for 2023/24
HMRC have published details of the rates and thresholds applying for the 2023/24 tax year of relevance to employers. The 2023/24 tax year starts on 6 April 2023. Employers will need to check that they are using the correct rates from the start of the new tax year.
PAYE Threshold
The standard personal allowance is unchanged for the 2023/24 tax year at £12,570. Consequently, the PAYE thresholds remain at:
- £242 per week
- £1,048 per month, and
- £12,570 per year.
The emergency tax codes for 2023/24 remain at 1257L W1, 1257L M1 and 1257L X.
The basic rate of tax remains at 20% and is payable on the first £37,700 of taxable income. The higher rate of 40% applies from taxable income in excess of £37,700 is up to £125,140.
The additional rate threshold is reduced from £150,000 to £125,140 for 2023/24. As a result, more employees will pay tax at the additional rate of 45%, which applies to taxable income in excess of £125,140.
National Insurance Thresholds
The lower earnings limit remains at £123 per week (£533 per month; £6,396 per year), the primary threshold remains at £242 per week (£1,048 per month; £12,570 per year) and the upper earnings limit remains at £967 per week (£4,189 per month; £50,270 per year).
Employees pay primary Class 1 contributions at the rate of 12% on earnings between the primary threshold and the upper earnings limit and at 2% on earnings in excess of the upper earnings limit.
The secondary threshold remains at £175 per week (£758 per month; £9,100 per year). Higher secondary thresholds apply where the employee is under the age of 21, an apprentice under the age of 25, an armed forces veteran in the first year of their first civilian employment since leaving the armed forces (£867 per week; £4,189 per month; £50,270 per year) or a new Freeport employee in the first 36 months of their employment (£481 per week, £2,083 per month, £25,000 per year).
Employers pay secondary Class 1 contributions at the rate of 13.8% on the employee’s earnings to the extent that they exceed the relevant secondary threshold.
To ensure that your payroll software calculates National Insurance contributions correctly, check that your employees have the correct category letter.
The Class 1A and Class 1B rates are 13.8% for 2023/24.
National Living and Minimum Wage
The National Living Wage (NLW), payable to workers age 23 and above, is set at £10.42 per hour for pay periods beginning on or after 1 April 2023. From the same date, the National Minimum Wage (NMW) is £10.18 per hour for workers age 21 and 22. £7.49 per hour for workers age 18 to 20 and £5.28 per hour for workers under the age of 18 but who have reached school leaving age and also for apprentices under the age or 19, or over the age of 19 and in the first year of their apprenticeship.
Review the pay for workers being paid at or near the current NLW and NMW wage rates and increase their pay as necessary to bring it into line with the new rates applying from 1 April 2023.
This very useful webpage can be found on the Gov.uk website at: tinyurl.com/2p822pu3 It is worth book marking as a handy reference source.