In addition to the right to request flexible working, employees have legal protections from discrimination.
If your request is refused, or your employer treats you unfairly in relation to your request, you may also experience unlawful discrimination. This article gives an overview of common types of discrimination that arise in flexible working cases involving childcare responsibilities.
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. The same principles could apply where women need flexible work because of other caring situations.
In law, indirect discrimination occurs when:
- Your employer requires something of, or imposes a working practice on male and female employees, for example full-time working or shift 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. In flexible working cases, this will be the difficulty of combining the required work hours with your caring responsibilities. This does not mean the hours are impossible to work but it is advisable to show why you need the hours requested, for example, the affordability or availability of childcare from a particular nursery or family members, how much time you think your child should be in your care and the serious consequences of refusal.
- The requirement or practice cannot be justified by your employer as genuinely necessary for the business. Assessing this means the tribunal will examine how badly you are disadvantaged by the requirement.
When deciding whether indirect sex discrimination has taken place, Tribunals look at the individual circumstances of each case. 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 full-time work (for example) 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.
Direct Sex Discrimination
Men cannot claim indirect sex discrimination for childcare reasons.
However, if 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.
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 than they are. If your employer won’t give you flexible working, but is making an exception for female employees because of their childcare responsibilities, as a man you may have a claim for 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. You should seek advice before making this argument.
Women who are unable to work in the pattern required by their employer may be able to claim direct sex discrimination, as well as indirect sex discrimination, depending on what has happened. 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.
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.
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.
Associative Disability Discrimination
It is unlawful to discriminate against you because you are associated with someone who has a disability. For example, if the reason you are refused your request for flexible working request it because you care for a disabled child.
But this does not give you a general right to time off to care for your disabled child. It is only if your employer has treated you less favorably than they treat parents of non-disabled children that you could complain of direct associative disability discrimination.
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.
Other Discrimination Arguments
You might have other rights under the Equality Act, for example if you are asking for the change for religious reasons. If you think this is the case please get specialist advice.
Constructive Unfair Dismissal
People often describe being constructively dismissed as “having no choice but to resign”. This is not the legal test. The legal test is if the employer breached the contract in such a serious way that the employee can consider it at an end.
Some unreasonable refusals can amount to breach of contract for instance of the implied duty of trust and confidence by the employer. If a tribunal is satisfied that you had in effect been dismissed by your employer’s actions, it will then go on to consider whether the dismissal was unfair.
Constructive dismissal can be complicated and difficult to prove so you should always seek advice before resigning.
Have a look at our example of claim brought in the employment tribunal in a case where the employer refused flexible working.
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.