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Proper consideration of flexible working requests

Posted on: October 22nd, 2021 by Ginny Hallam

Two recent cases (here and here) have shown that failing to give proper consideration to flexible working requests can give rise to successful sex discrimination claims.


Both cases related to mothers returning from maternity leave and requesting to work flexibly to manage their child-caring responsibilities. The employers failed to provide evidence to show they’d given adequate consideration of the proposals, with the tribunal deciding this amounted to indirect sex discrimination in both cases.

Practical takeaways

Childcare disparity – women are recognised by tribunals as facing a childcare disparity. Failure to objectively assess and evidence why you’re unable to accommodate a request to work flexibly opens the door for arguments of discrimination.

Training – anyone responsible for making a decision on flexible working requests should have thorough training and a consistent system to enable them to identify, consider and respond appropriately to the request.

Trial – consider a trial if you’re unsure whether the proposal will work – capture the terms in writing so everyone is on the same page.

Facts and figures – any refusal should be supported by facts and figures. Simply saying ‘the costs will be too high’ leaves open arguments of discrimination.

With the government proposing a day-one right to request flexible working, a spike in requests is likely. Taking a proactive approach now can help you get ahead – here are our previous updates to help if you’re in a flexible working fix.

If you need support in managing future flexibility and flexible working requests, Intelligent Employment is here to help. Find out more.


This update is accurate on the date it was sent (26 October 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.