Unless the situation comes into one of the exceptions where your employer is specifically allowed to take your protected characteristic(s) into account, they must not base their decision about your working hours or flexible working on your protected characteristic(s).
If your employer does this, it is likely to be direct discrimination, which cannot be justified (unless the protected characteristic is age – this is explained in Situations where equality law is different.
For example:
An employer bases their decision whether to agree to a request to work flexibly on the worker’s sex. The employer agrees a mother’s request to work flexibly but refuses a father’s request, just because he is a man and the employer believes it is less important for him. This is probably direct sex discrimination and it would also be a breach of the right to request flexible working if the father had applied under that procedure.
Your employer must not make a decision that has a worse impact on you and other people who share a particular protected characteristic than it has on people who do not share it. Unless your employer can show that what they have done is objectively justified, this will be indirect discrimination.
For example:
A woman returns from maternity leave and asks to work part time using the right to request flexible working, for which she qualifies. Her employer turns down the request because none of the jobs at the organisation similar to hers are done part time. The employer must:
- follow the procedures set out in the law on the right to request flexible working, including basing the decision on business reasons, and
- be able to objectively justify the refusal, as the decision not to allow people in similar jobs to the woman’s to work part time has a worse impact on her and on other women compared with men, as women are more likely to be combining paid work with caring responsibilities. If the employer cannot objectively justify the refusal and the application of the rule (about no part-time work in that job), this is likely to be indirect discrimination because of sex.
- A women who is caring for her young child applies to work flexibly using the right to request, for which she qualifies. She is turned down. She makes another request six months later, suggesting a different working pattern that could easily be accommodated. Her employer does not have to use the procedures set out under the right to request, because these requests only have to be considered at 12 month intervals. However, if the employer refuses to look at her request altogether or if they refuse her again, this may be indirect discrimination because of sex, unless the employer can objectively justify what they have done. This is because a refusal to consider a change in the woman’s working arrangements has a worse impact on both the individual women and on women generally compared with men, because they are more likely to have to combine paid work with caring responsibilities.
- A woman who works part time is required by her employer to change to full-time hours when her job-share partner resigns. She is told that if she does not work full time she will be dismissed. The employer does not consider recruiting another job-share partner and argues that there are business reasons for no longer allowing her to work part time. This may be indirect sex discriminationif there is not a very strong reason for refusing to allow the woman to continue working part-time, because the requirement to work full-time has a worse impact on women than on men.
These rules apply to existing workers whether or not they qualify for the right to request’ under the flexible working procedure. They also apply to job applicants and new starters.
If a rule about working hours prevents more women than men from applying for a job, this may be unlawful sex discrimination, unless the employer can objectively justify the rule. This may result in an employer having to agree to a request to work flexibly from the time a woman starts working for them.
For example:
- A woman is unable to apply for a job for which she is well-qualified because the employer requires all staff to work a rotating shift pattern. The woman is unable to work during all the shift patterns because she needs to look after her 80-year-old mother at particular times of the day. No allowances are made because of this need. Such a requirement would put the woman and other women at a disadvantage because women are more likely than men to need to combine paid work with caring responsibilities. The employer will have indirectly discriminated against the woman because of her sex unless the requirement can be objectively justified.
- A woman is put off applying for a job to work in a small newsagent’s and convenience store because the job requires working hours of 7am to 3pm, and she cannot combine the early start with her childcare responsibilities. Because the very nature of the business is to open early, it is likely that the employer would be able to objectively justify the requirement for the early start.
- However, the woman and a friend in a similar situation apply to do the job between them. One will take on the early morning childcare for both of them one week while the other works, and then they will swap over. In this situation, if they are between them the best person for the job, it may be indirect discrimination for the employer to refuse to allow this arrangement, unless the employer can objectively justify the refusal. Of course, as a matter of good practice, the employer themselves could open the job up to flexible working of this kind.
Although it is more likely that women rather than men will be combining paid work with caring responsibilities, employers must avoid making assumptions about who has responsibilities for caring for children or adults. If an employer acts on an assumption based on a person’s protected characteristics, for example, that a gay man’s request for particular working hours is less important than a straight woman’s, this may result in direct or indirect discrimination.