Precedent 7: Refusal of flexible working request for a father (direct sex discrimination)

This precedent covers these issues:

• Refusal to allow a father to work flexibly
• Resignation as a result.

and these legal claims:

• direct sex discrimination;
• indirect sex discrimination;
• harassment;
• constructive unfair dismissal.

Please note that successful constructive unfair dismissal claims can be quite hard to bring and in the circumstances described here, there may be insufficient facts to show that there was an implied breach of trust and confidence by the employer which was so serious that it caused the employee to resign. See our constructive dismissal page for more information.

Box 8.2 of tribunal claim form

1. I started work for the respondent in 2015 as a train driver. I have always worked fixed shifts.
2. In September 2023, the company announced that it was going to move all drivers onto flexible shifts (8 am — 4 pm; 4 — 12 pm; 12 – 8 am). I told my manager, Brian Jackson, that I needed to continue to work a fixed shift, so I could make consistent childcare arrangements. Mr Jackson said that my contract allowed for flexibility on shift patterns and that he thought that childcare was the province of the child’s mother. I tried to explain that she works full-time too and we could only manage if I knew I would always be available at certain times. He just laughed and told me I “should take a stand with her as it’s not a man’s job to look after the kids – that’s women’s work”.
3. On 14 October 2023, I wrote to a letter of protest at the change of terms that I had always had and made a written flexible working request to work fixed shifts under the Flexible Working Regulations 2014 (SI 2014/1398) (as amended). Mr Jackson had a meeting with me in October to discuss my request. He told me he couldn’t make exceptions and I would have to work the same shifts as the others. I said I knew that he had allowed my female colleague, Jane Friendly, to work fixed shifts because of her young children. Mr Jackson said it was not a comparable situation.
4. I wrote a letter of appeal on 25 October 2023.  My appeal was heard by the depot manager, but it was also unsuccessful. The depot manager just gave me all the reasons why flexi-shifts were allowed in the contract and were operationally necessary and why everyone had to cooperate. He didn’t seem interested in my difficulty. He said that under our contracts, we all had to work flexible shifts if required. When I mentioned Jane’s arrangement, the depot manager said the contracts and terms of other employees was confidential.
5. As I was unable to work fixed shifts, I had no choice but to resign. Also, I was very upset about the way my childcare concerns were not taken seriously which was because I was a man with caring responsibilities rather than a woman as I was told childcare was not the responsibility of the father but is for the mother to deal with.
6. I believe that the refusal to allow me, a male employee to continue to work fixed shifts was direct sex discrimination contrary to the Equality Act 2010.
7. In the alternative, I believe this was also indirect discrimination because I suffered substantially the same disadvantage as a woman with caring responsibilities in my role if flexible shifts were imposed organisation wide.
8. I believe the language used about my role as a father and as a man and about the role of my wife and mothers in childcare amounted to harassment on the grounds of sex. The language used amounted to unwanted conduct related to my sex which had the effect of violating my dignity and creating a humiliating environment for me in breach of s26 of the Equality Act 2010.
9. Further, I believe the refusal of my request to work fixed shifts and the failure to take my request seriously because I was a man, was a fundamental breach of the implied term of trust and confidence. I therefore believe I was constructively dismissed and I claim unfair dismissal contrary to s98(4) of the Employment Rights Act 1996. I also believe my contractual terms of fixed shifts over such a long period of time became established contractual terms and overrode the written contract as this flexibility was never exercised. 
10. I also believe my constructive dismissal was direct sex discrimination contrary to the Equality Act 2010.
11. I also claim notice and accrued holiday pay.

Notes

Actions complained of

Always identify the actions complained of first. Here, these are:

• The refusal of the claimant’s request to continue to work fixed shifts;
• Using discriminatory language;
• Allowing similar requests by female employees; and
• Being forced to resign as a result.

It is very important not to miss tribunal time-limits. These can be complicated. You may want more information on tribunal time-limits.

Applicable law

Different treatment of a worker on grounds of sex is direct sex discrimination contrary to s13(1) of the Equality Act 2010. So in this case it is direct discrimination because the employer refused to let a man work fixed shifts when it allowed a woman to work fixed shifts.

Where a woman has her request to work fixed shifts or otherwise flexibly due to childcare turned down, she may be able to claim indirect sex discrimination under section 19 of the Equality Act 2010, see precedent 5. Men cannot usually claim indirect sex discrimination, because this concept depends on showing that one sex (in this case, women) tends to be disadvantaged more than the other by the employer’s rule. The Equality Act 2010 (Amendment) Regulations 2023 which came into force on 1 January consolidated specific protections from EU case law and this amends s19 of the Equality Act to allow people who do not share the protected characteristic (in this case being female) provided they can demonstrate they suffer the same disadvantage.  Men may now be able to use similar arguments. See our page for more information.

It is uncertain whether statistics would show that married people and civil partners tend to have childcare obligations more than people who are not married or civil partners. If so, a married or civilly partnered man could consider claiming indirect discrimination because of marriage or civil partnership under section 19 of the Equality Act 2010. You should take expert advice before trying this type of claim. It is not included in this precedent.

The discriminatory language used could amount to harassment related to a protected characteristic.  This type of harassment of a worker occurs when a person engages in unwanted conduct which is related to a relevant protected characteristic and which has the purpose or the effect of: violating the worker’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker. Unwanted conduct covers a wide range of behaviour, including spoken or written words, jokes and pranks.

The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not mean that express objection must be made to the conduct before it is deemed to be unwanted.

The example in the EHRC employment code sets out is similar to this:

“In front of her male colleagues, a female electrician is told by her supervisor that her work is below standard and that, as a woman, she will never be competent to carry it out. The supervisor goes on to suggest that she should instead stay at home to cook and clean for her husband. This could amount to harassment related to sex as such a statement would be self-evidently unwanted and the electrician would not have to object to it before it was deemed to be unlawful harassment.”

The Flexible Working Regulations 2014 (as amended) give the employee an independent right to have their request to work part-time or set hours formally considered. There is no right under those Regulations to have the request agreed. If — as here — the employer correctly follows the procedure but refuses the request, the claimant’s only rights are any which exist under the Equality Act 2010, Employment Rights Act 1996 or Maternity and Parental Leave etc Regulations 1999. For an example where the employer has failed to follow the procedure in the Regulations correctly, see our page on what to do if your request is refused and precedent 5.

If the Claimant resigns as a result of the discriminatory treatment and refusal to let him work fixed shifts, this be found by a tribunal to be constructive dismissal. Although there are many complexities and difficulties in making a constructive dismissal claim.

If successful with showing there has been a constructive dismissal, he may be able to claim unfair dismissal under section 98(4) of the Employment Rights Act 1996, provided he is an employee with at least two years’ service

See our page on constructive dismissal for more information. It depends on the facts and will be for the employment tribunal to decide whether the employer’s conduct in refusing the request, possibly taken with the employer’s treatment of the Claimant generally, is serious enough to be a fundamental breach of trust and confidence and a finding of constructive dismissal. In some cases, depending on what the employment contract says, the employer’s decision to change the employee’s working hours would be a breach of the Claimant’s contract of employment – see our page on changes to terms.

In this case, the Claimant’s written contract allowed for the proposed change in hours so there is an argument that there is no breach of contract and therefore no claim for constructive dismissal based on a breach of contract for the change of hours. The Claimant may try to argue that the years of fixed shifts became a custom and practice arrangement although this is less likely to succeed. 

Constructive dismissal can also be because an act of discrimination by the employer. This act of discrimination could be found to be a fundamental breach of trust and confidence, so it can be a breach of contract entitling the employee to resign.

If an employee resigns without notice due to fundamental breach of his contract, he can claim notice pay and accrued holiday pay.

You might find it helpful to use a table of legal rights often applicable in areas relevant to working families.

Comments on the claim drafted above

Paragraphs 1 – 5 set out the facts and paragraphs 6 – 8 set out the law.

Paragraphs 3 – 4: It is standard to set out the claimant’s request to work flexibly, any verbal response, the written outcome if different, and similar information regarding any appeal.

Paragraph 7: There must be a fundamental breach of contract if the claimant wants to resign and claim constructive dismissal. In this case, the claimant’s contract allowed the relevant change of hours, so the claimant’s contract was not broken in that respect. Instead, the claimant is arguing that the discrimination in the refusal to grant him leave is a sufficient breach of the implied term of trust and confidence — even more so as his request was almost ridiculed because he was a man.

The unfair constructive dismissal claim mentions ‘s98(4)’ just to make it clear it is talking about ordinary unfair dismissal here rather than any kind of automatic unfair dismissal.

Except as explained, the above precedent does not cite the precise sections applicable to most of the claims. This is because the law is particularly difficult in this area and if you leave something out or get a section number wrong, it may cause problems later.

Variations

Victimisation: At paragraph 3, the claimant complains that his female colleague has been allowed to continue with fixed shifts. His managers may have understood him to be making an allegation of sex discrimination, though he doesn’t say so specifically. If as a result, the company had turned nasty, this could have led to a victimisation claim under s27 of the Equality Act 2010.

Had there been evidence that the company turned nasty and refused his flexible working request because he raised a sex discrimination issue, the claimant could simply have added at paragraph 6: `Alternative’ refusal was victimisation because I complained that a female colleague was allowed to work fixed shifts’.

However, there is no evidence here that the refusal of his flexible working request was because the claimant implicitly alleged sex discrimination. The evidence simply suggests he was refused because he is a man, i.e. direct discrimination.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

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