Flexible working requests
The post-pandemic workplace is of course very different, and we are all still learning to handle the ‘new normal’. One of the key developments has been the significant increase in flexible, hybrid and homeworking. These changes are very likely to lead to a corresponding increase in indirect sex discrimination claims from women as flexible working requests become more frequent and more difficult for employers to refuse given that many office-based employees have successfully worked flexibly during the pandemic.
To clarify, an indirect sex discrimination claim arises where an employer applies a particular policy or way of working which someone of a particular sex is less likely to be able to meet and this places them at a disadvantage to the opposite sex. Indirect sex discrimination claims that are connected to a flexible working request are normally brought by women as they are much more likely to have the primary responsibility for childcare and for looking after elderly relatives and can therefore be disadvantaged by certain working patterns or arrangements.
Recent employment tribunal cases
Several recently reported employment tribunal judgements have shed further light on what tribunals now consider when deciding an indirect sex discrimination claim.
In the case of Dobson v North Cumbria Integrated Care, the employment tribunal did not find indirect sex discrimination partly because she had not put forward evidence to show that the policy put women at a particular disadvantage because of their childcaring responsibilities. However, the Employment Appeals Tribunal (EAT) allowed Ms Dobson’s appeal and the case was remitted back to the employment tribunal. The EAT confirmed that the ‘childcare disparity’ still exists at work and that despite the pandemic resulting in a change of circumstances at home with more men sharing childcare responsibilities this did not mean that women no longer held primary childcare responsibilities. In conclusion, the EAT held women remain less likely to be able to accommodate certain working patterns than men and that the childcare disparity is likely to be particularly relevant where women are asked to work unpredictable hours or hours falling outside the normal working day.
In another case of Follows v Nationwide the employment tribunal found it was indirectly discriminatory to require an employee to give-up her homeworking arrangements where she was caring for her disabled mother as again more women than men are primarily responsible for looking after elderly relatives. It therefore held that forcing her to give-up homeworking put women including Mrs Follows, at a particular disadvantage. Interestingly the tribunal noted in its judgement that 58% of carers are female.
In the most recent case on indirect discrimination of Allen v Primark Stores Ltd which was reported in April of this year, the tribunal did not uphold a finding of indirect sex discrimination. However, on appeal the EAT again decided that the tribunal had got it wrong by misunderstanding the relevant pool of comparison. It remitted it back to the tribunal to give a judgement based on the correct pool of comparison.
Learning points
The case of Dobson v North Cumbria Integrated Care is the most important one, as it confirms that the childcare disparity still exists making it easier for women to establish group disadvantage which is sometimes the crucial element required to win an indirect sex discrimination claim. The case also means that women will not be required to provide their own supporting evidence when bringing this type of claim, in circumstances where factors relating to childcare put them at a disadvantage.
Employers need to ensure that they have a robust and transparent flexible working policy and procedure and can fully explain their reasons for rejecting a flexible working request. It should be noted that none of the recent tribunal cases alter the legal position regarding objective justification and it therefore remains open to employers to use this defence to justify refusing a flexible working request that may be indirectly discriminatory on the grounds of sex by establishing that it is a proportionate means of achieving a legitimate aim.
For advice or further information on how to protect your business and avoid employment tribunal claims including indirect sex discrimination claims, call Henry Doswell of Doswell Law Solicitors on 01233 722942. Alternatively, email Henry at henry@doswell-law.com
Disclaimer: Whilst every reasonable effort is made to make the information and commentary contained in this blog accurate and up to date, Henry Doswell takes no responsibility for its accuracy and correctness, or for any consequences of relying on it. The information and commentary in this blog does not constitute legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter.