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Flexible working - discrimination

This advice applies to Scotland

You may feel that the reason your employer refused your request was discriminatory. It can be difficult to spot whether or not you have been discriminated against, so it is best to get specialist advice.

This page gives you some examples to help you identify when your employer's refusal of your flexible working may be discriminatory.

Discrimination law is complex and you should always, wherever possible, get advice before you start a claim. You should always remember that, initially, you will have to prove your claim and that you will need evidence in order to do so. Your claim will not succeed if you base it on nothing more than a feeling that you have been discriminated against. If you are bringing an indirect discrimination claim, you will need to get statistical evidence to show the tribunal that people with the same protected characteristic as you are, or would be, disadvantaged by the same refusal to allow flexible working.

Some advantages of taking a discrimination claim

When you are thinking about whether to make a claim to an employment tribunal because of discrimination or because your employer has refused a statutory request, you may wish to consider the following points:

  • the grounds on which you can make a claim to an employment tribunal under the rules on flexible working are very limited
  • the right to make a statutory request for flexible working is limited to those who have been employed for 26 weeks, whereas rights under equality law start from the first day of employment
  • under the Flexible Working Regulations, you can only make one request for flexible working per year. There's no such limit under equality law
  • any kind of flexible working request connected to childcare or disability may be protected by equality law
  • there’s no limit to the compensation which an employment tribunal can award under equality legislation, although it will be linked to your actual loss of earnings.

Indirect discrimination

If you’re a working mother, you’ll have a claim for indirect discrimination, if you can show that apparently equal treatment has a greater impact on you and on women generally. If your request for flexible working is turned down because it is your employer's policy or practice not to agree to requests from anyone, you haven't been treated any differently from a man making the same request. However, the policy or practice puts you at a disadvantage, and puts women generally at that same disadvantage. Statistically, it has a discriminatory impact on women. However, it is open to your employer to try to justify the policy or practice, and if it can be justified it will not amount to unlawful discrimination.

Example

An employer refuses a woman's request to work part-time, saying, 'Part-time work is too disruptive for our business; our policy is to use only full-time employees'. This isn't direct sex discrimination because the rule is applied equally to men and women.

However, it is potentially indirect sex discrimination. The rule places a woman at a disadvantage, because she won't be able to continue working for this employer if full-time work is the only option. Statistically, the rule also places women at a particular disadvantage, because more working women than men have childcare responsibilities.

The employer's comments about disruption to the business are an attempt to justify the rule, but any justification argument must be based on reality and not assumption, and employers must find the least discriminatory ways of maintaining business efficiency.

Direct discrimination

You may have a claim for direct discrimination if you’re treated differently from other workers because of a protected characteristic.

Example

A gay man adopts a child. His request to start and finish work an hour earlier is not even considered, because 'it's not company policy'. However the policy says that all requests from parents will be given serious consideration.

Discrimination against pregnant women and women on, or returning after, maternity leave

It is discriminatory to treat a woman unfavourably, during the protected period relating to her pregnancy, because of her pregnancy or because of illness suffered as a result of her pregnancy. The protected period begins when the pregnancy begins, and ends at the end of her additional maternity leave period or when she returns to work, if she returns to work earlier. If she isn’t entitled to ordinary and additional maternity leave, the protected period ends two weeks after the end of the pregnancy.

It is also discriminatory to treat a woman less favourably because she’s on compulsory maternity leave, or because she’s intending to take, or has taken, maternity leave.

Discrimination against carers

Carers of disabled children or adults and carers who are disabled themselves may have arguments about discrimination relating to disability. Arguments based on age discrimination might also in some circumstances be relevant. In any case, where you have a protected characteristic and that has a bearing on your employer's decision not to grant your request, there is a potential discrimination claim.

Example

A woman whose son is disabled makes a request for flexible working. Her employer is usually quite open to flexible working requests, but refuses to allow it in her case, and is heard expressing the view that people with disabled children shouldn't be working at all. When she challenges him about this he loses his temper and says he's sick of her 'going on about' her son, and that she's 'playing the disability card'. This is direct discrimination because of disability, or harassment related to it.

Flexible working as a reasonable adjustment

You may ask for flexible working to help you because of a disability. For example, you may find it difficult to travel to work during peak hours, so you could ask to start and leave work outside peak hours.

Other useful information

Acas Code of Practice and guidance

Flexible working - further help

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