Precedent 6: Refusal of part time work request; detriment for taking dependant leave, disability discrimination by association. For use in Northern Ireland Only
For a precedent example for use in England, Scotland and Wales, please use Precedent 6
This precedent covers these issues:
- Refusal to allow part-time working.
- Detrimental actions because the claimant took dependant leave.
- Indirect sex discrimination
- Disability discrimination by association
Box 7.4 of tribunal claim form
- I started work for the respondent estate agency in 2012. I never had any disciplinary action taken against me throughout my employment.
- I have a five year old son who has been diagnosed with autism. On three occasions during 2018, I have had to take dependant leave to make care arrangements when he suddenly fell ill. I took the leave on 3 and 4 August, 5 April and 20 September 2018. After I returned to work, my manager (Sarah Dillon) kept complaining that it was inconvenient to have me keep taking time off without notice.
- During my appraisal on 1 August 2018 (for the year 1 August 2018 – 30 July 2018), 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.
- Sarah Dillon also said that 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. I also had a good attendance record and I had only been absent through sickness 5 days in that appraisal year. I believe I was being criticised because I had taken time off to care for my dependent son.
- Since 1 August 2018, 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. I again believe this was as a result of my having taken time off to care for my dependent son.
- In September 2018, 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 (Northern Ireland) 2015 to work three days/week.
- On 4 October 2018 I met with Sarah Dillon to discuss my request. She refused my request on the ground 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.
- I appealed to the Respondent’s managing director on 5 October 2018. He heard my appeal on 10 October 2018, but he also refused my request.
- I believe I have been subjected to the following detriments under the Employment Rights (Northern Ireland) Order 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.
- In addition, I believe the refusal to allow me to work three days/week is indirect sex discrimination contrary to the Sex Discrimination (Northern Ireland) Order 1976. I also consider that the manner in which the decision to refuse my request was made, and the conduct of the flexible working process, was a breach of the Employment Rights (Northern Ireland) Order 1996 and the Flexible Working Regulations (Northern Ireland) 2015.
- I request a recommendation that I can work three or four days/week. I also request compensation for injury to feelings, a declaration that I have been treated discriminated against in the above instances, and a statutory award for the manner in which it dealt with my flexible working request.
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.
Refusal of a request to work part-time or insistence on full-time working may be indirect sex discrimination under the Sex Discrimination (Northern Ireland) Order 1976. 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 may be applicable where an employer has refused to allow part-time working, because it is generally accepted that women still tend to have the greater share of childcare obligations than men and so would be disadvantaged by this refusal. An employer can defend a claim of this sort if they can show that not allowing part-time working was a legitimate business need.
If the employer has or would allow a male employee in a similar situation to work part-time, the claimant could also claim that the refusal to allow them to work part-time was direct sex discrimination under the Sex Discrimination (Northern Ireland) Order 1976. This was not the case here.
It is unlawful to discriminate against an employee because of her association with someone else who has a disability (or any other protected characteristic other than marriage or civil partnership, or pregnancy or maternity leave (which could be an act of sex discrimination)). This is known as associative disability discrimination under section the Disability Discrimination Act 1995 and is a type of direct discrimination. This could occur where an employee requests time off or an alternative working arrangement because of their caring responsibilities for a disabled person. The scope of this is limited however and does not mean that an employee has a general right to take time off to care for a dependant relative. For example, if an employee is penalised by her employer for taking time off to care for her disabled son, she will only be able to make a claim for associative disability discrimination if she can show that, had her son not been disabled and she asked for time off to care for him, she would not have been penalised. If the employer can show that he would treat all employees the same if they ask for time off to look after their child, whether or not the child has a disability, there is no claim for disability discrimination.
Any employee with 26 weeks continuous service with their employer can make a request for flexible working under the Flexible Working Regulations (Northern Ireland) 2015. There is no right under those Regulations to have the request agreed. If the employer correctly follows the procedure but refuses the request, the claimant’s only rights are any which exist under the Sex Discrimination (Northern Ireland) Order 1976, Employment Rights (Northern Ireland) Order 1996 or Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999. Precedent 5 is an example of the employer failing to follow the procedure in the Regulations correctly.
Under section 85A of the Employment Rights (Northern Ireland) Order 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 85A 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 70C of the Employment Rights (Northern Ireland) Order 1996 and regulation 19(2)(e) of the Maternity and Parental Leave etc. Regulations 1999 (Northern Ireland), it is unlawful to subject the employee to a detriment because she has taken or sought to take leave for a prescribed reason, which can include time off for dependents or maternity leave. If the detriment amounts to dismissal, it may be considered automatic unfair dismissal under section 131 of the Employment Rights (Northern Ireland) Order 1996 and regulation 20(3)(e) of the Maternity and Parental Leave etc. Regulations (Northern Ireland) 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 70C or 85A.
You may find it helpful to see 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. Here we concentrate on the claimant’s claim under the Sex Discrimination (Northern Ireland) Order 1976 as indirect sex discrimination and not under the Regulations. Precedent 5 is an example of the employer incorrectly following the Flexible Working Regulations. It is however possible to bring a claim both under the ER(NI)O and the FW if for instance the employer did not follow the correct procedure or if the reasons for refusing the request were not factually correct.
Paragraph 10 sets out the remedy the claimant wants, i.e. a recommendation as well as compensation. You are required to outline what you will be asking the tribunal to award as a remedy but do not have to quantify the compensation or detail the recommendation sought until later in the tribunal process.
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. It is best to take advice prior to issuing a claim.
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 Disability Discrimination Act 1995 (DDA) as the treatment was because of her son’s disability and the DDA covers associative discrimination in relation to disability.
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 Disability Discrimination Act 1995:
(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.
This advice applies in Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.