People law in brief - June 2011 

Focus point

Part time work – mother’s right?

The statutory right to request flexible working could be criticised as being without teeth, in that an employer only has to name one of the list of business reasons to refuse the request. However, claims arising from a refused application for flexible working normally come hand in hand with a claim for indirect sex discrimination.

Indirect sex discrimination arises when a provision, criterion or practice (PCP) applies which puts women at a disadvantage when compared to men. So, in this context, a woman who has had her request to work part time refused might allege that the requirement to work full time in her role put her, as a woman, at a disadvantage. In this month’s focus point, we explore whether, with increased parental rights and flexibility, this type of claim has as much substance as may have once been the case.

1) Who is the appropriate comparator?

It is necessary for the claimant to show that she has suffered a particular disadvantage ‘as compared’ to a man. In the recent case of Wilson & Paterson v Hacking, EAT, the claimant claimed that she had suffered indirect sex discrimination because her employer refused her request for flexible working. The main issue for discussion was the pool for comparison: should it be all employees of the employer or just those who wanted the flexible working benefit? The EAT concluded that the appropriate pool of comparators should be those who, at the relevant time, wanted flexible working to be available. It follows, that if the majority of people wanting flexible working are women, does the claimant suffer a particular disadvantage on grounds of sex? This case could narrow the scope for women to bring these type of claims although, as more employees start to request flexible working including those who will no longer be subject to compulsory retirement at the age of 65 or men with parental responsibilities, this may change again.

2) Can there be particular disadvantage when everyone is denied their request equally?

All members of the pool in the Wilson case would have had their flexible work request denied and it was suggested that there can be no comparative disadvantage between men and women in a situation like this. However, the EAT took a different view, this being to look at the consequences of the refused request. In some cases, the effect of the refusal policy may be more disadvantageous for women traditionally thought to be primary childcarers, than a group of men.

 
3) Are women still the primary childcarers?

It has been assumed that women are the primary childcarers for some time but, in the Wilson case the EAT rejected the contention that women are the primary childcarers. It was held that society as a whole is changing and, as such, more men are assuming the primary childcare responsibilities and there are increasing numbers of women who are returning to work. The introduction of the additional paternity leave entitlement may well reinforce this. Ultimately, whether women are at a particular disadvantage because they are the primary childcarer will come down to evidence, based on supporting statistics.

4) Even if a woman is the primary childcarer, when is she “unable” to work full-time and “unable” to comply?

There are a number of factors why a mother would chose not to return to work full time, such as the level of nursery fees compared to net earnings, when childcare is available, the quality of care provided by the nursery, the willingness of the father or family members to act as the primary carer and the father’s net income. However, the EAT commented, that where the employee is able to work full time but does not wish to do so, it is difficult to see that it would be correct to talk in terms of that female employee being disadvantaged. So does this permit or require the employer to ask for evidence as to why the female employee cannot work full time? Perhaps so.  However, it is a difficult assessment to make because when does being a part time parent become a necessity rather than a lifestyle choice?

To conclude such claims for indirect sex discrimination remains a complex issue and it is likely that employers will remain exposed to claims for sex or other discrimination when requests for flexible working are refused. However, it may no longer be correct to assume that a mother is in a good position to argue sex discrimination if her flexible working request is rejected.  This is particularly so, as we see an increase in the number of requests for flexible working by older workers (as an alternative to retirement) and/or fathers (following paternity leave) and as society sees a move towards grandparents and fathers having more childcare responsibilities.

Briefcase news

In the case of Cherfi v G4S Security Services Ltd the EAT has upheld a Tribunal’s decision that refusing to give an employee permission to leave work to attend Friday prayers at a Mosque was a proportionate means of achieving a legitimate aim.  This was because it was necessary to meet the operational needs of the business and the employer would be in danger of financial penalties or even losing its contract if all staff were not on site all day. The EAT also had regard to the limited discriminatory effects that the employee would suffer. The employer had provided a prayer room on site and had also offered the employee the option of working a Saturday or Sunday instead of a Friday.

Similarly, in the case of Dhinsa v Serco and another, a Tribunal has held that a ban on prison officers carrying knives did not amount to indirect race or religions discrimination against a Sikh prison officer who wished to wear a kirpan (a ceremonial dagger) one of the five “articles of faith” work by Amritdhari Sikhs. It was held that the ban did not amount to indirect race discrimination because fewer than 10% of Sikhs are Amritdhari and as such, the ban did not have a significant impact on the Sikh ethnic group as a whole. The ban was objectively justified as it was a proportionate means of achieving a legitimate aim (in this case being the safety and security within the prison).

Watch this space

The European Parliament’s Women’s Rights Committee has called for legislation to set quotas on the number of women participating in board rooms. Statistics show women only make up 10% of the directors of the largest listed companies in the EU and only 3% of CEO’s. The issue will be debated by the European Parliament next month, and would, if approved, call for a legislation in 2012 which will increase “female representation in corporate management bodies of enterprise to 30% by 2015 and to 40% in 2020.” This could prove interesting with the provisions of the Equality Act 2010 enabling positive action and in certain circumstances, affording preferential access to a woman where she is ‘as qualified’ as a male candidate. 

And finally

It’s bad news I’m afraid for those of you who were looking forward to the having an additional bank holiday on St George’s Day. The bill to create an additional bank holiday has been withdrawn after its second reading in the House of Commons. The House of Commons drew attention to a separate Government consultation on moving the first bank holiday in May to commemorate St George’s Day. This lead to the withdrawal of the bill as the intention behind it was to create an additional bank holiday, rather than moving an existing one!