Discrimination against parents and carers in the workplace

Direct sex discrimination is when, because of your sex, someone treats you less favourably than someone of the opposite sex who is in a similar situation. In the context of parenting, this can occur when a parent or carer is treated less favourably on the basis of their sex.

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

Indirect sex discrimination occurs when an employer has a policy or practice that applies in the same way to both sexes, but which puts someone at a disadvantage because of their sex, and the policy or practice cannot be “objectively 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 in which Working Families intervened 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 the insistence on 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. As a result Employment Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours.

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.

Indirect Sex discrimination – same disadvantage

The wording of the Equality Act had previously required the individual bringing the claim to belong to the disadvantaged protected group which meant that a man was not able to rely on indirect discrimination if he was refused flexible working for childcare reasons as he does not belong to the the protected disadvantaged group (women). However, the Equality Act was amended on 1st January 2024 to enable individuals who do not have the relevant protected characteristic but are nevertheless disadvantaged in the same way as the disadvantaged protected group to bring a claim for indirect discrimination.

For example, if your employer has a policy requiring weekend work or full time working, under the new section 19A Equality Act 2010, a man with caring responsibilities could now potentially argue that although he does not belong to the disadvantaged protected group (in this case women), he suffers substantially the same disadvantage as the protected group because of his childcare responsibilities.

In order to establish particular disadvantage, there must be no material difference (except of course concerning the protected characteristic relied on e.g. sex) between the circumstances of the individual bringing the claim and the protected group.

As mentioned above, an employer can defend an indirect sex discrimination claim if they can show that the policy or working practice was necessary and proportionate and this is usually the battle ground for indirect discrimination claims.

As section 19A Equality Act 2010 only became law on 1st January 2024, we do not yet know how tribunals will deal with claims based on ‘substantially the same disadvantage’ and as such, we cannot advise on the strength of any potential indirect discrimination claims brought by men with caring responsibilities. However, a recent Employment Appeal Tribunal case (Rollet v British Airways) confirmed that a person (in this case a man with caring responsibilities) can bring an indirect discrimination claim even if they do not belong to the protected group (women) so long as they suffered the same disadvantage as the group with that characteristic. Therefore, if you are a man with caring responsibilities who has had a flexible working request refused or have been subjected to an inflexible working pattern, you could have a claim for indirect sex discrimination.

Harassment is unwanted behaviour that you find offensive, where the other person’s behaviour is because you have a protected characteristic, in the case of parents and carers the protected characteristic is usually sex.

Unwanted behaviour could include spoken or written abuse, offensive emails, physical gestures, facial expressions, jokes or “banter” that is offensive to you. Anything that is unwelcome to you is unwanted and you don’t need to have previously objected to it. The unwanted behaviour must have the purpose or effect of violating your dignity, or creating a degrading, humiliating, hostile, intimidating or offensive environment for you.

Pregnancy and maternity are not protected characteristics for harassment, but sex is, and therefore pregnant women experiencing harassment would bring a claim for harassment because of sex.

Examples of how harassment could also occur on the basis of sex where an employer engages in unwanted conduct based on stereotypes on pregnancy, 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.

Victimisation

Victimisation is when you someone treats you badly because you have made a complaint about discrimination. It can also occur if you are treated badly because you are supporting someone who has made a complaint of discrimination.

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.

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 child with a disability is treated less favourably because they have a child with a disability, than a parent of a non-disabled child.

For instance, in Coleman v Attridge Law, the employer did not allow Ms Coleman the same flexibility to look after her 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 have a disability, this would not be direct associative disability discrimination.

The first thing to mention is that this area of law is uncertain.

Indirect disability discrimination (same disadvantage) would involve applying a provision, criterion or practice which puts a person who is not disabled at substantively the same disadvantage as persons who have a disability. This is a new type of discrimination which came into force on 1 January 2024 (see below) and we do not yet know how widely this will be interpreted.

Indirect disability discrimination (by association) might occur when an employer refuses a flexible working request, or imposes a working pattern 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.

As with all indirect discrimination claims, an employer can objectively justify the requirement or practice if it is a real business need, and the employer could not achieve the need by less discriminatory means.

The employment tribunal case (Follows v Nationwide Building Society) established that a claim for indirect disability discrimination by association is possible, although subsequent cases have not allowed similar claims (Rollett and others v British Airways plc) and (Ahmed and another v British City Council and others).

In Follows, Mrs Follows was the principal carer for her mother who had a disability. 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 people with a disability 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.

However, in Rollett, the tribunal held that in order to succeed in a claim for indirect associative disability discrimination, the person bringing the claim who is not disabled would need to show that they suffered the same disadvantage from the policy being applied, as those who have a disability. Essentially the Tribunal found that it is not enough to be associated with the person who has a disability but rather you must suffer the same disadvantage as those who have a disability.

Furthermore, the Equality Act 2010 was expanded in January 2024 to allow an individual to bring a claim for indirect discrimination even if they do not belong to the protected group but nevertheless suffer substantially the same disadvantage as the disadvantaged group (see Indirect Sex discrimination – same disadvantage above), but there was no reference in the amendments to the Equality Act to the concept of indirect discrimination by association with someone with the protected characteristic. The amendments to the Equality Act do not therefore appear to cover a Follows type discrimination by association scenario and it seems much less likely that a similar case would be successful now. The concept of Indirect discrimination by association is therefore unhelpful as simply having an association with an individual from the protected group is unlikely to give rise to a claim by itself without being able to establish that you suffer the same disadvantage as the protected group (people with a disability) would as a result of the policy being applied.

However, as we do not yet know how tribunals will interpret ‘substantially the same disadvantage’ we cannot be certain as to whether a Follows type claim based on an individual being disadvantaged due to their association with someone with the protected characteristic could still succeed under section 19A Equality Act 2010 although our view is that such a claim would be unlikely to succeed.

If you are caring for someone with a disability, it is still worth the argument that refusing you flexible working or insisting on a particular working practice could be indirectly discriminatory because you care for someone with a disability, but whether or not such a situation would meet the ‘substantially the same disadvantage’ requirement under section 19A Equality Act 2010 is uncertain.

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.

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 outright of discrimination, but you can say if think you are being treated unfairly because of a protected characteristic e.g. I have been treated unfavourably because of my pregnancy, or I have been treated less favourably than my colleague who does not have caring responsibilities. 

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 – any compensation you are awarded can be reduced by up to 25%. 

It is advisable to try and resolve things amicably (where possible and time permitting), 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.

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.