was a woman constructively dismissed when a request to work by her disabled son’s hospital bedside was refused?

April 15th, 2021

Yes, held the Leeds Employment Tribunal in Hodgson v Martin Design Associates.  It also amounted to unlawful sex discrimination.

The Claimant was an office manager who had been employed for some 11 years.  Her son was diagnosed with an aggressive form of leukaemia and was receiving gruelling chemotherapy treatment in hospital.  She made an informal request to work remotely by his hospital bedside.  Without investigation or evidence, the Managing Director refused the request, stating that she could not work and look after her son’s needs.  Her views were given no credit.

Mrs Hodgson, clearly distressed, submitted that she needed to work to meet household bills, but this was disregarded with a response from the company that it “didn’t have an open cheque book”. The Claimant was advised to take paid annual leave followed by unpaid leave to enable her to care for her son.  No paid compassionate leave was offered, despite her long-term service and unblemished work record. A couple of months later a formal flexible working request was submitted.  This was also refused.  She resigned in July 2019.

The tribunal found that the Mrs Hodgson was constructively dismissed.  Employment Judge Wade preferred the Claimant’s evidence that she could have performed the majority of her tasks remotely.  The refusal to allow remote working and failure to reasonably deal with the flexible working request was likely to seriously damage trust and confidence.  The tribunal found that the Managing Director’s decision was influenced by his belief that he knew what was best for the Claimant.

The Respondent’s actions also amounted to unlawful sex discrimination. At the hearing evidence was submitted showing the differential treatment afforded to several male colleagues who were granted permission to work remotely.  By contrast, there was no contention that remote working arrangements may not be good for the male comparator or his family and no suggestion that the Managing Director knew better. 

The Claimant also succeeded in her claim for disability discrimination by association relating to her son’s disability.  There was found to be harassment in the form of unwelcome conduct relating to her son’s disability which had the effect of creating a hostile working environment for Mrs Hodgson when they suggested her role was redundant.

The tribunal awarded £60,000 which included compensation for the “considerable” injury to feelings that had been caused by the employer’s discriminatory decisions and actions.

The full judgment can be found here.

This judgment serves as a clear reminder to employers that flexible working requests should be dealt with reasonably and in a non-discriminatory manner.   A carefully drafted flexible working policy is also advised. Not to mention perhaps a more human approach to the treatment of staff dealing with very difficult personal circumstances.

This blog is by Caroline Oliver, Senior Solicitor at Didlaw

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