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Home Advice for Parents & CarersDiscrimination as a Parent/Carer Discrimination against parents and carers in the workplace

Discrimination against parents and carers in the workplace

Last updated: 4 May 2022

The Equality Act 2010 prohibits discrimination and other unfair treatment in the workplace relating to certain ‘protected characteristics’. For a list of protected characteristics, see our article on discrimination, harassment and victimisation.

Being a parent or carer is not a protected characteristic. However, parents and carers who experience unfair treatment at work due to their childcare or caring responsibilities may be covered under other protected characteristics, including:

Sex discrimination

Parents and carers can experience discrimination on the basis of sex related to their caring responsibilities.

Direct sex discrimination

Direct discrimination can occur when a parent or carer is treated less favourably on the basis of their gender.

For instance, if an employer refuses to allow a father to work flexibly around his childcare responsibilities, but allows female colleagues to do so, because of sex (e.g., because employer believes men shouldn’t have caring responsibilities). This would be an example of direct sex discrimination.

Indirect sex discrimination

Indirect sex discrimination can occur when an employer has a policy or practice that applies to everyone, but disadvantages women, and the policy or practice cannot be justified by the employer.

Because women tend to have more childcare responsibilities than men, a policy or practice that disadvantages women because of their childcare responsibilities can amount to indirect sex discrimination. This was confirmed by the Employment Appeal Tribunal in a case called Dobson v North Cumbria.

This argument can apply to employers who refuse a flexible working request, or a mother’s request to work part time, or require working patterns that are difficult to make work around childcare responsibilities. In Dobson, the employer had a policy requiring employees, including Mrs Dobson, to work flexibly, including weekends, as and when required by the employer. The Employment Appeal Tribunal confirmed that women are more likely to find it difficult to work certain hours (for example, nights and weekends) or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities.

There does not need to be a formal policy in place for an employer to challenge an employer policy or practice on the basis of indirect sex discrimination. A one-off or discretionary management decision can be challenged as discriminatory. For instance, in British Airways v Starmer, Ms Starmer made a request to work 50% of her full time hours following her return from maternity leave. Her employer rejected this request and offered her a post working 75% of her full time hours. The Employment Appeal Tribunal found that the employer’s decision was indirectly discriminatory, since it disadvantaged women and was not justified.

Harassment

Harassment could also occur on the basis of sex where an employer engages in unwanted conduct based on stereotypes on gender and parenting roles. For instance, if an employer makes unwanted comments based on assumptions about a woman in connection with pregnancy, maternity or childcare.

Pregnancy and maternity discrimination

Pregnancy and maternity discrimination occurs when a woman is treated unfavourably because of her pregnancy, pregnancy-related illness, or intention to take maternity leave.

Examples of unfavourable treatment

Examples of pregnancy and maternity-related discrimination include dismissal, removal of responsibilities or seniority, a failure to offer a pay rise when you would have had one if you had been in work, or the refusal to promote or offer training because you have been on maternity leave.

When is the ‘protected period’

In order for it to be considered maternity or pregnancy discrimination, the unfavourable treatment must occur during what is called the ‘protected period’ – which runs from when you become pregnant to the end of maternity leave. Unfavourable treatment because of pregnancy or maternity that happens outside of this period may amount to sex discrimination.

Disability discrimination

The Equality Act 2010 protects against many forms of disability discrimination. Most relevant to those with parenting and caring roles are direct and indirect associative disability discrimination. This occurs when someone is treated less favourably than someone else because of being associated with a person (e.g., a child or dependant) with a disability.

For the purpose of direct or indirect associative discrimination, the person you are associated with (e.g., your child or dependant) needs to meet the definition of disabled under the Equality Act. This definition is a physical or mental impairment which has a substantial or long term (i.e., more than 12 months) adverse effect on someone’s ability to carry out normal day-to-day activities.

Direct associative disability discrimination

It is unlawful to treat someone less favourably because they are associated with someone else who has a disability. For example, if a parent of a disabled child is treated less favourably than parent of non-disabled children becuase they have a disabled child.

For instance, in Coleman v Attridge Law, the employer did not allow Ms Coleman the same flexibility to look after her disabled son as they did her colleagues who were parents of non-disabled children. She was described as lazy when she requested time off to look after her son whereas the other parents were not.

Bear in mind that if your employer refuses everyone flexibility for childcare, whether or not their children are disabled, this would not be direct associative disability discrimination.

Indirect associative disability discrimination

Indirect associative disability discrimination is a developing area of law. A recent employment tribunal case (Follows v Nationwide Building Society) established that a claim for indirect disability discrimination by association is possible, although this area of law is not quite settled.

Indirect associative disability discrimination could occur for parents and carers when an employer requires something of, or imposes a working practice that puts those parenting or caring for someone with a disability at a disadvantage compared to those who do not parent or care for someone with a disability.

An employer can justify the requirement or practice if it is a real business need, and the employer could not achieve the need by less discriminatory means.

In Follows, Mrs Follows was the principal carer for her disabled mother. Her employer decided that she could no longer work from home on a full time basis due to a need to provide on-site supervision. Because of her caring responsibilities, Mrs Follows could not comply and she was dismissed. The tribunal accepted that carers for disabled people were less likely to be able to be office-based than non-carers, and as such Mrs Follows was put at a substantial disadvantage because of her association with her mother’s disability. Her employer could not objectively justify the requirement, so the tribunal upheld the claim of indirect associative disability discrimination.

This decision in Follows does not change the law in the UK as employment tribunal decisions are non-binding, which means that other tribunals are not required to follow them. To become binding law, a higher court must consider the issue and make a decision, such as the Employment Appeal Tribunal.

Marriage and civil partnership discrimination

Marriage and civil partnership discrimination happens when a person is treated less favourably because of their marital status or because they are in (or not in) a civil partnership. The original purpose of marriage discrimination was to protect women affected by a ‘marriage bar’ (a requirement that used to be commonly applied by employers that women had to resign from employment when they got married).

Indirect marriage or civil partnership discrimination

A married parent may potentially be able to claim indirect marital discrimination, if an employer has a policy or practice that disadvantages married people compared with non-married people.

If the disadvantage is related to childcare responsibilities, you would need to prove that more married people have childcare responsibilities than unmarried people. However, this is an untested argument and you would need to prove that this is true and you should seek advice before making this argument.

What to do if you think you have experienced discrimination

If you believe your employer has treated you unfairly, you can consider taking the following steps. You can also contact us for advice.

Try to resolve the issue

Speak to your employer in the first instance and try to resolve things informally. Try to keep communications friendly if you can. It can sometimes be more effective if you focus on solutions and the way forward, rather than the things you are unhappy about.

Often, employers can become defensive if accused of discrimination, but you can say if think you are being treated unfairly because of a protected characteristic. 

Raise a grievance

If the discussions with your employer don’t resolve the issue, or you think your employer has treated you very unfairly and the relationship is breaking down, you can consider raising a grievance.  You can find more information in our article on grievances.

Raising a grievance is important if you think you might later raise a claim in the Employment Tribunal because failure to follow internal resolution methods can disadvantage your claim. 

It is advisable to try and resolve things amicably, as formal processes can damage your relationship with your employer. For some legal insight into grievances and tips on how to engage with your employer before it reaches this point, see our article on grievances do more harm than good.

Your employer should not ignore your grievance, fail to hear it within a reasonable time or reject it out of hand (as doing so could amount to a breach of your employment contract). However, your employer is not obliged to uphold your complaint.

If you are unhappy with the outcome of your grievance, you should normally be able to appeal it; the procedure will be set out in your employer’s grievance policy. If you are unhappy with the outcome of the appeal process, you can contact us for advice.

Make a claim in the Employment Tribunal

If the above steps do not resolve the matter you could bring a claim in the employment tribunal.

Proving discrimination claims can be difficult: the discrimination is rarely made explicit. Most employers will not actually say: ‘the reason why I’m dismissing you is because of your protected characteristic’. So it is necessary to produce evidence to prove the real reason for the treatment so that the Tribunal can infer from the facts what really happened.

The Tribunal will follow a two stage ‘burden of proof’ test. Firstly, they decide whether you have provided sufficient proof that an act of unlawful discrimination has taken place. Then, the burden of proof will shift to your employer to provide a non-discriminatory explanation for their actions.

See our section on starting a claim for further information and beware of time limits. You must contact ACAS to start early conciliation within three months less a day of the act of discrimination.

Tribunal claims can be expensive and long, and there is no guarantee of success, so this step should be considered cautiously. It is often best to try to resolve the issue with your employer.

If you are considering bringing a claim, you can contact us for advice.

The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.