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.
Box 8.2 of tribunal claim form
- I started work for the respondent in 2005 as a train driver. I have always worked fixed shifts.
- In September 2013, 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 work a fixed shift, so I could make consistent childcare arrangements. Mr Jackson said he thought that 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.
- On 14 October 2013, I made a written request under the Flexible Working Regulations 2002. Mr Jackson had a meeting with me on 21 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 colleague, Jane Friendly, to work fixed shifts because of her young children. Mr Jackson said it was not a comparable situation.
- I wrote a letter of appeal on 25 October 2013. 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 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 Friendly, the depot manager said the business of other employees was confidential.
- As I was unable to work fixed shifts, I had to resign. Also, I was very upset about the way my childcare concerns were not taken seriously because I was the father rather than the mother.
- I believe that the refusal to allow me to work fixed shifts was direct sex discrimination contrary to the Equality Act 2010.
- 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 constructive dismissal was direct sex discrimination contrary to the Equality Act 2010.
- I also claim notice.
Actions complained of
Always identify the actions complained of first. Here, these are:
- The refusal of the claimant’s request to work fixed shifts.
- Allowing similar requests by female employees.
- 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.
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 gender (in this case, women) tends to be disadvantaged more than the other by the employer’s rule. 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 Flexible Working Regulations 2002 give the worker an independent right to have their 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. NB The law on flexible working is due to change on 30 June 2014. This precedent sets out the law prior to the changes.
If the Claimant resigns as a result of the refusal to let him work fixed shifts, this may be constructive dismissal. If so, he can claim unfair dismissal under section 98(4) of the Employment Rights Act 1996, provided he is an employee with at least two years’ service (if he started working for that employer on or after 6 April 2012, or one year’s service if he started work before 6 April 2012). Constructive dismissal occurs where an employer breaks the employment contract is such a serious and fundamental way that the employee is entitled to decide that the contract is ended and so resigns. This can include breaking the implied term of trust and confidence which is a part of all employment contracts. It depends on the facts 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, but in this case it is unlikely to be a fundamental breach entitling the employee to resign. 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. Here, the Claimant’s written contract allowed for the proposed change in hours so 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 constructive dismissal can also be because an act of discrimination by the employer (the direct sex discrimination under section 13 of the Equality Act 2010). This act of discrimination can 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.
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 direct 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.
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: ‘Alternatively, the 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.