Indirect sex discrimination and flexible working

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 be indirect sex discrimination. The same principles could apply where women employees 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), and
• 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 in that you may have to leave your job or suffer stress and exhaustion if you continue.

And,

• 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, so the evidence demonstrating this will be useful here too.

When deciding whether indirect sex discrimination has taken place Tribunals look at the individual circumstances of each case though some general principles have been developed by the courts in flexible working cases. These mean that the employer:

• must show s/he has examined thoroughly 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’ operation. 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 which might help you;

• must not have relied on generalisations for rejecting your proposal e.g. an assumption that flexible hours would not meet any need the business has for continuity or a blanket policy (e.g. no flexible hours allowed as this would set a precedent) but can show your particular job must be done as the employer requires.

Men cannot claim indirect sex discrimination for childcare reasons. However, a married man or a man in a civil partnership might be able to claim indirect marital discrimination, if without justification, he was not permitted to work flexibly, and suffered harm as a result. Also, 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.