Precedent 6 Refusal of part time work request; detriment for taking dependant leave

This precedent covers these issues:

• Refusal to allow part-time working
• Detrimental actions because the claimant took dependant leave.

 

Box 5.2 of tribunal claim form

 

1.       I started work for the respondent estate agency in 2003. I never had any disciplinary action taken against me throughout my employment.

2.       I have a five year old son who has been diagnosed with autism. On three occasions during 2009, I have had to take dependant leave to make care arrangements when he suddenly fell ill. I took the leave on 3^rd and 4^th August, 5^th April and 20^th September 2010. After I returned to work, my manager (Sarah Dillon) kept complaining that it was inconvenient to have me keep taking time off without notice.

3.       During my appraisal on 1st October 2010 (for the year 1^st October 2009 – 30 September 2010), Sarah Dillon complained again that I was taking too much time off because of my son. She said it was very disruptive and caused problems for other staff having to cover me. She said she had therefore decided it was better not to put me on high value properties where large commissions are at stake.

4.       Sarah Dillon said I had failed my appraisal because of my attendance record and poor work. I was very upset because I had passed all my appraisals in the past. Also I had a good attendance record and I had only been absent through sickness 5 days in that appraisal year.

5.       Since October 2010, I have only been given low value properties to look after. Before that I used to get a mixture including some high value properties. This has badly affected my earnings through commission.

6.       In November 2010, I decided it was too difficult to make care arrangements for my son when I was full-time at work and I made a formal request under the Flexible Working Regulations 2002 to work three days/week. Sarah Dillon held a meeting with me on 4th November 2010. She refused my request on grounds that our clients needed continual access to their agent. I said that the clients would surely be happy if they knew that I was available on three named days and a named other person was available on the other three days. Also, it would reduce the likelihood of me needing any unexpected dependant leave. However, Sarah wouldn’t agree. She confirmed her decision in writing the same day.

7.       I appealed to the managing director on 5th November 2010. He heard my appeal on 10th November 2010, but he also refused my request.

8.       I believe I have been subjected to the following detriments under the Employment Rights Act 1996 as a result of having taken dependant's leave:
(i)   Continual complaints from my manager about my having taken dependant's leave;
(ii)  Failing my appraisal;
(iii) Not giving me any high value properties to manage.

9.       In addition, I believe the refusal to allow me to work three days/week is indirect sex discrimination contrary to the Equality Act 2010.

10.  I request a recommendation that I can work three or four days/week. I also request compensation and a declaration that I have been treated unlawfully. 

 

 

 

Actions complained of

 

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

 

• The refusal of the claimant’s request to work part-time.

• Detrimental action as a result of her taking dependant leave: poor appraisal; removal of high value work. 

 

It is very important not to miss tribunal time-limits. These can be complicated. Click here for more detail on discrimination time-limits.

 

Applicable law

 

Refusal of a request to work part-time or insistence on full-time working may be indirect sex discrimination under section 19 of the Equality Act 2010. Indirect sex discrimination is where an employer unjustifiably applies a general rule (eg no part-time working) which puts women (more than men) at a particular disadvantage. This is because women still tend to have the greater share of childcare obligations.

If the employer would have allowed a male employee in a similar situation to work part-time, the claimant could also claim direct sex discrimination under section 13 of the Equality Act 2010. This was not the case here.

 

The Flexible Working Regulations 2002 give the claimant an independent right to have her request to work part-time 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 precedent 5. 

 

Under section 57A of the Employment Rights Act 1996, an employee is entitled to reasonable unpaid time off to make care arrangements for dependants when they fall ill or because of unexpected disruption to care arrangements etc. Section 57A is not as useful as it could be because it does not extend to allowing time off to provide ongoing care. You need to read the section for its precise scope.

 

Under section 47C of the Employment Rights Act 1996 and regulation 19(2)(e) of the Maternity and Parental Leave etc Regulations 1999, it is unlawful to subject the employee to a detriment because she has taken or sought to take dependant's leave. If the detriment amounts to dismissal, it is automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and regulation 20(3)(e) of the Maternity and Parental Leave etc Regulations 1999. You need to be very careful. The employee only receives this protection if the time off which she took was definitely covered by section 57A.

 

Click here for a table of legal rights often applicable in areas relevant to working families.

 

Comments on the claim drafted above

 

Paragraphs 1 – 7 are the facts; paragraphs 8 – 9 contain the law; paragraph 10 requests the legal remedy.

 

Paragraph 1: This is an easy way to start most tribunal claims. It is particularly relevant in this case to state the claimant had never had any disciplinary action taken against her. Make sure this is accurate!

 

Paragraph 4: This points out that in the past, the claimant has always received good appraisals. Together with paragraph 3, it sets out the evidence that the reason for the poor appraisal was because the claimant took dependant's leave.

 

Paragraph 5: This points out that in the past, the claimant used to get some high value properties. Together with paragraph 3, it sets out the evidence that the reason for the withdrawal of high value properties was because the claimant took dependant's leave.

 

Paragraphs 6 – 7 and 9 are relevant to the refusal of part-time working. The claimant chose to use make her request via the Flexible Working Regulations procedure. (This is advisable, but not compulsory.) The employer correctly followed the procedure in the Regulations, but nevertheless, refused the request. The claimant’s claim is therefore under the Equality Act 2010 as indirect sex discrimination and not under the Regulations. For an example where the employer incorrectly followed the Flexible Working Regulations, see precedent 5.

 

Paragraph 10 sets out the remedy the claimant wants, ie a recommendation as well as compensation. Usually it is not necessary to ask for compensation or set out the remedy, but  click here for further information on remedy. Remedy is included in this precedent because the claimant needs to focus everyone’s mind on the fact that what she really wants to achieve is to be able to work three or four days / week.

 

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

 

In this case, the evidence does not indicate that the employer would have behaved any differently if the claimant’s child was not disabled. In a case where there is evidence that the employer would be more obliging and, for example, permit part-time working if the child was not disabled, the claimant could probably make a claim for direct disability discrimination on grounds of her child’s disability under the Equality Act 2010 as the treatment was because of her son’s disability and the Equality Act covers associative discrimination.

 

If you were able to make such a claim, you might modify the above precedent as follows:

 

Add at the end of paragraph 2:

I never noticed her make similar complaints to other female staff working in the estate agency whose children were not disabled.

 

Add at the end of paragraph 3:

She also said that it was unfortunate my son was autistic because it did seem to be a drain on my time.

 

Add at the end of paragraph 6:

In contrast, my colleague Angie Johnstone was allowed to work part-time to look after her young son. Angie’s son was not disabled.

 

Add a new paragraph 9:

I believe I was treated less favourably in the following respects because my son had a disability contrary to the Equality Act 2010:

(i)   Continual complaints from my manager about my having taken dependant leave;
(ii)  Failing my appraisal;
(iii) Not giving me any high value properties to manage.
(iv) Refusing my request to work part-time.