A Study in Flexible Working; Thompson vs Manors

In this week’s latest news, we wanted to do a case study of a case that has recently closed – the decision on Thompson vs Scancrown Ltd T/A Manors (known from this point on as Thompson vs. Manors). We want to look at the evidence presented, the judgement made, and why any particular claim succeeded or failed in the eyes of the tribunal.

Thompson vs. Manors – The Background

Thompson vs Manors is a case primarily about sex discrimination, specifically in regard to flexible working and pay. Alice Thompson was the sales manager of a small, independent estate agents – Manors – and in May 2018, announced she was expecting. According to her, the attitude towards her in the office soured, particularly from Paul Sellar, the Director of Manors. After months of feeling the animosity towards her, she argued with them about her maternity pay, and upon returning, argued with the Director about flexible working, which she says was not properly considered as is required by law. Following this, she resigned.

Mrs. Thompson made five claims against Manors;

1. Mrs Thompson claimed discrimination due to pregnancy and maternity;
2. She claimed harassment related to pregnancy and maternity;
3. She also claims Manors made unauthorised reductions to her referral fees;
4. She claims she was unfairly dismissed;
5. And finally, she claims she experienced indirect sex discrimination.

Sidenote: this case’s judgement opens with a particularly sharp complaint about Peninsula Business Systems and the defendant’s legal counsel, Slater Gordon Solicitors, for failing to file their electronic documents properly, ending this part of the judgement with the polite-legal-speak equivalent of “You should know better, so get your act together”. This has no bearing on the case, we just found the Judge’s tone funny.

Let’s go through each of the five claims one by one and explain why the judge came to the judgements he did in light of the evidence presented.

Claims 1 & 2: Sex Discrimination

1. Mrs. Thompson claimed discrimination due to pregnancy and maternity;
2. She claimed harassment related to pregnancy and maternity;

Given how linked these two are, we’ll tackle them together; they had the same result.

Her claims of direct discrimination and harassment came from a string of events from the announcement of her pregnancy to her resignation. The tribunal noted, on several occasions that they think that Mrs. Thompson read a narrative of hostility into the events, particularly on events before a trip to New York where her relationship with Mr. Sellar turned sour.

The first piece of evidence is a comment made at a dinner to celebrate her pregnancy. According to Mrs. Thompson, it was related to her that Mr. Sellar said, “For fuck’s sake, why is she pregnant when we’re doing so well?” to another person. Unfortunately, the voracity of the event couldn’t be verified. However, the tribunal decided that whether Mr. Sellar said it or not, it didn’t matter. Making a private comment, out of earshot of Mrs. Thompson, is not itself discriminatory. Sexist and poor taste? Yes. Discriminatory? No.

She claims her authority was undermined twice, the first time during a garden party the staff attended on Portman Square, and the second after another party in August. In both events, Mr Mr. Sellar gave the staff leave to return to work the next morning later to account for the late night and (presumably) hungover start to the morning.

Mrs. Thompson claims that she was made aware of neither and that both events undermined her authority over her staff, but we would like to point out that the first event could have been genuine oversight, and in the second, Mrs. Thompson was made aware in an email she hadn’t noticed. Her other complaint is that she has had to take leave on the days she was in New York and resented the other staff hadn’t had to use leave.

The next piece of evidence presented was the events of a trip to New York, when she claims she was excluded. The truth is that accommodations were made to make sure that she could attend the trip. It was planned for November but was moved to August for her. The judge found that, in the case of a boat trip, her exclusion was self-imposed – she volunteered to drop out and go shopping instead of joining the team on the boat.

And despite her being upset at not being able to join in drinking due to being pregnant, a busy program was booked to ensure there was a mix so everyone had something to do they would enjoy. On the return trip, when Mr. Sellar asked if she had enjoyed the trip, she admitted she didn’t; he responded saying perhaps she shouldn’t have gone. The comment seems to just have been made out of frustration due to the cost of the trip.

There was also an incident with a baby shower, wherein Mr. Sellar agreed to allow the use of the office, office time, and to bear the cost. There was a breakfast out, balloons, and confetti – the things one would expect out of a baby shower. However, the next week, the balloons and confetti were still out. Mr. Sellar requested they be cleaned up, and though Mrs. Thompson claims it was out of hostility, neither the tribunal nor ourselves can blame him for wanting the premises to be clean and tidy for the commencement of business.

Mrs. Thompson also makes a series of smaller, but unfounded claims. She claims she was spied upon and harassed for snacking (snacks which Mr. Sellar himself bought for her); that Mr. Sellar ignored her being in pain (nothing in any of the evidence Mrs. Thompson provided suggested her appointments to deal with that were anything other than routine ante-natal appointments), ignored her being at risk (she was offered a company car to avoid the tube, was allowed to use a Pilates ball instead of a chair, and though no risk appraisals were carried out, it was not necessary (Hardman v Mallon [2002] 2 CMLR 59) ). There was also an event where she was taken to task for returning with her team late from lunch, which is completely reasonable when her poor timekeeping cost the company half an hour of time for all of those employees.

Because all of her claims came with more innocent explanations, were the result of her own actions, or had nothing at all to do with her being pregnant or a woman, the tribunal did not find she had experienced harassment or discrimination.

Claim 3: Failure to Pay Wages

3. She also claims Manors made unauthorised reductions to her referral fees;

Over the course of her maternity, Mrs. Thompson wanted to receive bonuses for sales she had been involved with, but unable to complete. She also mentioned two referral fees she felt she was owed for referrals she made to another company, Base Interiors. The largest problem with this arrangement is it was a gentleman’s agreement, or otherwise not in writing. Base Interiors was run by Mr. Sellar’s sister, and the referral fees were part of a friendly arrangement.

Mr. Sellar agreed that he intended to pay her the fee for the first referral in dispute, but Base Interiors were in dispute and could not pay it yet. As for the other property, they found that Mrs. Thompson couldn’t prove that there had been a refurbishment on the property for which she could be paid. In short, she could not prove she was owed anything, and the claim failed.

Claim 4: Constructive Unfair Dismissal

4. She claims she was unfairly dismissed;

Mrs. Thompson made a claim for constructive unfair dismissal. You might be confused, as Mrs. Thompson resigned, and was not dismissed. But you can still claim ‘constructive unfair dismissal’; in short, this is where you resign because you believe your employer has ‘seriously breached their employment contract’. This can include things like not being paid without good reason, being bullied or discriminated against, raising a grievance that is ignored, or making unreasonable changes to working patterns or place of work without agreement.

The tribunal disagreed. They came to the conclusion that Mrs. Thompson resigned because she didn’t want to work the hours she was contracted. If Mr. Sellar had changed her hours unreasonably, then the claim could have stood. As it was, Mrs. Thompson didn’t want to work the hours she had before taking maternity leave, and Mr. Sellar refused to reduce her hours. Though we have more here to discuss, this isn’t an acceptable reason to refuse.

Claim 5: Indirect Sex Discrimination

5. And finally, she claims she experienced indirect sex discrimination.

This is the one claim that the tribunal did award to Mrs. Thompson and is related to the flexible working request above.

After Mrs. Thompson’s maternity, she wanted to work four days a week, and finish at 5pm, instead of 6pm. The reasoning she gave was the nursery looking after her child shut at 6pm and it was an hour’s drive in busy traffic to get there, so she needed to leave at 5pm to collect her child. She submitted a flexible working request, which was then rejected.

Mr. Sellar gave a potential future restructure, the cost of covering the work she would not undertake, and the inability to hire a replacement for the one day she would not be working.

He claimed that the cost of commission for the negotiators substituting her would constitute a 30% increase in wage costs. This doesn’t take into account the 20% reduction in her salary, nor the fact that the business was already covering Mrs. Thompson’s position with an employee they had no reason to let go.

This also put a hole in Mr. Sellar’s complaint he would not be able to find a sales manager available for only one day a week – Mrs. Thompson’s replacement was already there. In short, there was no real issue. As for the restructure, Mr. Sellar did not provide any evidence at all that a restructure was in the works.

On the flipside, Mrs. Thompson provided evidence she was unfairly burdened with childcare. She provided a survey by Direct Line Insurance, saying that mothers take the burden of 64% of childcare labour, taken in 2018. Given the survey’s methodology seemed sound, and it was relatively recent, the tribunal was happy to accept it as evidence that, compared to the male employees at Manors, the refusal of flexible working was an undue burden on the women and specifically mothers.

The law states that an employer has to give reasonable consideration to any flexible working request, and that this was a statutory right for any employee who had worked for more than 26 weeks. The tribunal decided that Mr. Sellar’s reasons didn’t hold up to scrutiny, and therefore his refusal did not constitute reasonable consideration.

Conclusion

Mrs. Thompson was only awarded the final of her claims, the one regarding indirect discrimination. She was awarded £88,512 for past loss of earnings, £5,900 for interest thereon, £12,031 for her future loss of earnings, £13,500 for injury for feelings, and £1,800 for interest thereon. This came up to a taxable reward of £121,744. They then did the calculations to ensure that after tax, she received that amount, and so the tribunal increased her award to £182,714.

What can we learn about this case? The first thing we can learn is that the tribunal will be careful to separate genuinely harassing treatment from bad will and misinterpretation. As previously mentioned, the tribunal noted on several occasions they felt Mrs. Thompson was reading hostility into benign events. As human beings, we like tight and tidy narratives – the narrative that Mr. Sellar was repeatedly sexist and discriminatory to her following the announcement of her pregnancy is nice, but not necessarily true.

When you’re constructing a discrimination case or defence, be sure to have solid proof of a narrative before you tell it. It’s possible Mrs. Thompson’s legal counsel was throwing legal spaghetti against the wall – trying to make as many claims as possible with the knowledge some might fall through – but we can’t be sure of anyone’s intentions without them telling us, and all this information has come from the judgement’s establishment of the facts.

The second is that it can be really easy to make mistakes when it comes to complex HR topics like flexible working. They deserve a great deal of attention and care to ensure that you don’t make mistakes and act in a way that is unintentionally discriminatory. On this note, we want to impress how important it is to have a very solid HR team that gives you the best service possible.

We do not know how involved Peninsula were with Mr. Sellar’s decision, but had he explained to an expert HR manager that the request for a 5pm finish was due to childcare needs, he would have received the advice it could have been indirectly discriminatory.

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Here to Help

HR and You’s handbooks and policies are fully in line with current legislation in regards to direct and indirect discrimination – and should you find yourself dealing with a flexible working request, we would be more than happy to help advise and guide you towards the ideal solution for you, your employee, and your business.

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