Flexible working and discrimination

Last updated: 5 May 2022

If your request for flexible working is refused, or your employer treats you unfairly in relation to your request, you may also experience unlawful discrimination under the Equality Act.

Unfortunately, parenting and caring is not protected characteristic under the Equality Act. But parents and carers who have their flexible working request refused may experience discrimination on the basis of sex, disability and marriage.

This article gives an overview of common types of discrimination that arise in flexible working cases involving caring responsibilities. For an general overview of discrimination against parents and carers, see the following pages:

You may wish to share our flexible working factsheet with your employer to help them understand the law on flexible working requests.

Sex discrimination

Parents and carers who have their flexible working requests refused can experience discrimination if the refusal amounts to less favourable treatment because of sex.

Direct sex discrimination

Direct sex discrimination happens when an employer treats men less well than women, or women less well than men, because of their sex.

Men can make a claim for direct sex discrimination if women in their organisation are being given more flexibility, or would have the same flexible working request approved. If, for example, a man is refused flexible working in a situation where women doing similar jobs are allowed to work flexibly, this could be direct sex discrimination.

You may also be able to make a claim if you can show that if there was a woman in your situation, she would be treated better in the handling of a flexible working request.

You should seek advice before making this argument.

Women who are unable to work in a pattern required by their employer may be able to claim direct sex discrimination, as well as indirect sex discrimination, depending on the circumstances. Where an employer treats someone less well, for instance by not changing that person’s work pattern, for a reason connected to pregnancy, childcare, maternity leave or breastfeeding, this can also be direct sex discrimination.

Indirect sex discrimination

It has been successfully argued that, because women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can amount to indirect sex discrimination. This is known as the ‘childcare disparity’ and the same principles could apply where women need flexible work because of other caring situations.

In flexible working cases, indirect sex discrimination occurs when:

  • Your employer requires something of, or imposes a working practice on male and female employees, for example full-time or inflexible working, which puts women at a particular disadvantage compared to men (e.g. because of they bear the main burden of caring responsibilities).
  • You suffer a disadvantage as a result of not being able to meet the requirement or practice.
  • The requirement or practice cannot be justified by your employer a real need for the business.

When deciding whether indirect sex discrimination has taken place, tribunals look at the individual circumstances of each case. If you are unsure about your situation, you should seek advice.

Some general principles have been developed by the courts in flexible working cases. These are that the employer:

  • Must show they have thoroughly examined whether the change is feasible and what problems insisting on a particular working pattern will cause you compared to how essential it is for the business. Inconvenience will not normally be a good reason, nor added costs, if this is the only reason for rejecting the change.
  • Has considered the alternative work pattern you suggested and possibly any others that might help you.
  • Must not have relied on generalisations for rejecting your proposal. For instance, if your employer has a blanket policy against flexible working (e.g., because of ‘fairness’ to all employees) or would not consider any flexible arrangements, this is more likely to amount to indirect sex discrimination.

This argument can apply to employers who refuse a flexible working request, or a mother’s request to work part time, or where require working patterns that are difficult to make work around childcare responsibilities. 

Case examples
In a case called Dobson v North Cumbria, an employer had a policy requiring employees, including Mrs Dobson, to work 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. The employer’s policy could therefore amount to indirect sex discrimination.

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.

Disability discrimination

If you request a flexible working arrangement because of your disability, for example, allowing you to work part-time or different working hours to avoid the need to travel in rush hour, you may have a claim for failure to make reasonable adjustments if your employer refuses your request.

The EHCR Employment Statutory Code of Practice, which tribunals must take into account, gives the example of allowing a disabled person to work flexible hours to enable him to have additional breaks to overcome fatigue arising from his disability as a potential adjustment that an employer might be required to make.

Possibly most relevant to those with parenting and caring responsibilities are direct and indirect associative disability discrimination. These forms of discrimination occur 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.

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 this does not give you a general right to flexible working to care for your disabled child. If your employer refuses everyone flexibility for childcare, whether or not their children are disabled, this would not be direct associative disability 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.

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.

This type of discrimination could 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.

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 discrimination

A married person or a person in a civil partnership might be able to claim indirect marital discrimination, if without justification, she/he/they were not permitted to work flexibly, and suffered harm as a result.

If you are married or in a civil partnership you may be able to argue indirect discrimination, that is, that more married people have childcare responsibilities than unmarried people. However, you would need to prove that this is true and you should seek advice before making this argument.

Other Discrimination Arguments

You might have other rights under the Equality Act, for example if you are asking for flexible working for religious reasons. If this is the case, please get specialist advice.

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. 

Appeal the refusal of your flexible working request

There is no legal right to appeal a flexible working request, but you should check with your employer to see if they allow appeals. Even if they do not say they allow appeals, you should appeal anyway.

For more information on appealing a refusal of a flexible working request, see our article on what to do if your flexible working request is refused.

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.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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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.

We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.