Flexible working and the law – a guide for employees
Alongside the Right to Request Flexible Working, employees have several legal rights which may help them to get the flexible working pattern they want. Watch our film to find out more about your right to request flexible working.
If your request is refused, you may be able to argue this amounts to indirect sex discrimination, direct discrimination and/or constructive dismissal.
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 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.
Direct Sex Discrimination
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.
Direct sex discrimination is where an employer either treats men less well than women, or women less well than men. Where an employer treats someone less well, for instance by changing that person’s work pattern, for a reason connected to pregnancy, childbirth, maternity leave or breastfeeding, this is also direct sex discrimination.
Women who are unable to work in the pattern required by their employer may be able to claim indirect sex discrimination, as well as or instead of direct sex discrimination, depending on what has happened. Because the statistics show that more women than men have responsibility for childcare in society generally the indirect sex discrimination argument does not work for men.
However, fathers can make a claim for direct sex discrimination if women in their organisation are being given more flexibility than they are. So, if your employer is making a change to working hours but is making an exception for some female employees because of their childcare responsibilities then, as a man you may have a claim for direct sex discrimination if s/he does not do the same for you.
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 get advice before making this argument.
If you are a married man you may be able to argue indirect marital discrimination, that is, that more married people have childcare responsibilities than unmarried people. However you should seek advice before making this argument.
Direct Associative Disability Discrimination
It is unlawful to directly discriminate against you because you are associated with someone who has a disability, for example, if the reason you are refused your request of flexible working request is because you care for your 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 favourably that 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) and she was described as lazy when she requested time off to look after her son whereas the other parents were not. But bear in mind that if your employer refuses everyone time off for childcare, whether or not their child is 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, or to adjust your work to help you as you have a disability. If you think this is the case please get specialist advice.
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 flagrantly unreasonable refusals to requests 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. See here for more information.
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, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details