Courtney Rawlins requested to work four days a week, two months ahead of the birth of his child. He learned that the company's administration had shared details of his new working pattern without his consent, which caused colleagues to gossip and make comments about him working less hours.
The tribunal ruled that this was sex harassment and a breach of confidence, as they decided that a woman who changed her hours would not have been subjected to similar behaviour after having a baby.
“This case is a good reminder that claims of sex discrimination can be brought by people of all genders, and flexible working requests can be made by people of all genders,” said Tina Chander, head of employment law at law firm Wright Hassall, speaking to HR magazine.
“There is a common misconception that when a child is born, the mother will return to work having made a flexible working request to reduce hours for childcare.
"This case should also serve as a reminder that HR matters such as the application and approval of a flexible working request should not be shared with other employees. In this particular case, a number of employees were informed – which absolutely shouldn't have happened.”
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In January 2022, Rawlins made a flexible working request to work four days a week. Before he went on paternity leave, J Singer, a colleague, informed Rawlins that another colleague, Mark Jackson, had been discussing his flexible working request with another driver. Singer told Rawlins that the colleague said he did not understand how Rawlins was allowed to work four days a week, and it “wasn’t fair”.
Employment judge Bradford found that Jackson had discussed Rawlins’ hours with a number of colleagues.
The judge also found that administrative staff had not kept Rawlins’ request confidential, which was a breach of his confidentiality.
Stephen Ravenscroft, partner at law firm Wedlake Bell, told HR magazine that an employer should be careful not to broadcast the reasons for an employee's flexible working request without their consent as there would be confidentiality and data privacy risks in doing so.
He said: “In many cases, a flexible working request may be made for the purposes of childcare, caring for an adult dependent, personal health reasons or other private reasons which an employee may wish to keep confidential from colleagues.
"An employer should make sure that all personnel involved in dealing with the flexible working request understand the need for discretion, including those managers responsible for implementing any flexible working arrangements which may be agreed.”
Once Rawlins returned to work after his paternity leave and annual leave, in April, the tribunal heard that he discovered colleagues were gossiping about him behind his back. Rawlins, meanwhile, reported that he was overloaded with work. He was trained to work a new route, which meant that he was often asked to deliver extra parcels, something he said he had “not been informed in advance” was expected of him.
He was also called on to help other drivers with their workload before completing his own, which the tribunal agreed was an increase in his workload.
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The judge heard that a manager joked, in the context of his workload: “Well, at least you’ve got tomorrow off, so it doesn’t matter how busy you are today.” Similar comments were made by colleagues.
Ravenscroft added: “If the flexible working arrangement impacts on colleagues then they may need to be informed of the actual flexible working pattern, be it the number of days or hours being worked, the location or other flexible arrangements. But this does not mean that the reasons lying behind the request should be disclosed."
In August, Rawlins raised a grievance about his treatment, but not all of his points were upheld. He subsequently resigned, claiming he felt he had no option but to do so.
The tribunal ruled out that this was unfair dismissal, as he had not been employed for two years.
Judge Bradford agreed, however, that the gossip about his working hours and comments about his day off made him feel “very uncomfortable”, and that this was likely to have been harassment related to his sex, as “there is unlikely to have been gossip if a female changed their hours or working pattern to look after their baby”.
They also noted that the gossip had the effect of creating a hostile or humiliating environment, though it was likely not the colleagues’ intent.
Comments that do not have the intent of harassing employees can still be interpreted as such, Chander explained.
She commented: “Gossiping, joking and comments classed as 'banter' are all capable of being conduct that constitutes bullying, harassment, and discrimination.
“Joking and banter in particular are very often considered a defence by employees but this is not a defence, and employers should not tolerate banter that causes offence to an employee.”
The tribunal ruled that there was a causal link between Rawlins’ resignation and harassment he experienced. Rawlins felt his working relationship was “untenable”, the tribunal heard.
Rawlins was awarded £10,620.48 for loss of earnings after he resigned, and £9,706.67 in injury to feelings, which totalled £20,327.15.
