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Indirect sex discrimination and flexible working

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If you are a woman with childcare commitments who is either unable to work flexibly or requires flexible working hours and you are subjected to a detriment by your employer, as a result, you may be able to evidence that you have been discriminated against on the grounds of your sex.

Inability to work flexibly

In the recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust [UKEAT/0220/19/LA], a claimant, who has three children, brought a claim of indirect sex discrimination against her employer after she was dismissed due to her inability to work flexibly, including at weekends, due to childcare commitments.

The Employment Appeal Tribunal (EAT) ruled that when considering a claim of indirect discrimination on the grounds of sex, the tribunal should take ‘judicial notice’ of the fact that women are more likely to bear the burden of childcare commitments, than men, and that this can ‘limit their ability to work certain hours’.

It has been acknowledged that men do share in childcare responsibilities more now than has been apparent previously, however, it is still considered that overall, women take on the larger share of childcare responsibilities.

It therefore appears that a provision, criterion or practice (PCP) of requiring employees to work flexibly, including at weekends, may be considered by a tribunal to be discriminatory against women, because, due to childcare commitments, they are less likely to be able to accommodate such working patterns, than men. This does, however, need to be considered on a case by case basis.

The case has been remitted to the Employment Tribunal so that the tribunal can consider the issue of indirect discrimination again. Whilst no final decision has yet been made, the decision of the EAT has been described as a ‘landmark victory for working mothers’, by the claimant’s representative.

You will have potentially been discriminated against if you have suffered unfavourable treatment and have been put to a detriment, as a result of a protected characteristic, such as gender.

If you have been subjected to a detriment, (dismissal or otherwise), by your employer, due to your inability to work flexibly, (or, in other terms, your requirement for set days/hours of work), as a result of childcare commitments, you may be able to evidence that you have been indirectly discriminated against.

Indirect discrimination is where a provision, criterion, or practice is applied to a group of people but ultimately, puts certain individuals at a disadvantage, as a result of a protected characteristic.

A requirement for all employees to work flexibly could be considered by a tribunal as being a provision, criterion or practice which could have an indirect effect upon women with childcare commitments who cannot agree to work flexibly.  

If you feel you have been discriminated against as a result of a protected characteristic, you may be able to bring a claim for discrimination under the terms of the Equality Act 2010, however there are strict time limits within which courts/tribunals will accept such claims. If you believe that you may have been subjected to discrimination, please contact our specialist discrimination and employment solicitors, without delay, for further advice on 0161 696 6170.