Why insisting on flexible hours could discriminate against women

Two recent cases from the Employment Appeal Tribunal illustrate some potential pitfalls when women with childcare responsibilities are asked to move away from fixed working hours. 

In order to establish a claim for indirect sex discrimination in these circumstances, the claimant needs to establish two things:

• That the employer has applied a “provision, criterion or practice” (PCP) to a number of staff members, including the claimant; and
• That the PCP puts the claimant and other women at a “particular disadvantage” when compared to male workers

If the claimant passes both these tests, the employer is required to justify the imposition of the PCP by showing that it is “a proportionate means of achieving a legitimate aim”.

In the first of these cases, involving a support worker caring for disabled adults, the employer had removed previously agreed “considerate hours” working arrangements for about a month, before restoring them. During that period she was no longer offered shifts that were guaranteed to fit round her child care arrangements and her earnings were reduced as a result.

The employment tribunal accepted the employer’s argument that the removal of these arrangements did not involve applying a PCP. The EAT disagreed: the employers were clearly requiring the claimant to work the hours allocated to her, rather than offering hours to accommodate her child care arrangements. That amounted to a PCP. The fact that she did not have to accept all the hours offered was not relevant.

The second case involved a community nurse working for a NHS Trust. Once again, the claim was triggered when the employers sought to impose more flexible hours, including working the occasional weekend, in place of the fixed hours the claimant had previously worked. In this case, however, the employment tribunal dismissed her claim because they took the view that she had failed to produce evidence to demonstrate that being required to work flexible hours put women at a particular disadvantage. 

The EAT said that such evidence should not have been required. It had already been established in previous case law that the burden of childcare still falls disproportionately on women. That meant that the tribunal should have accepted this as a fact, rather than requiring the claimant to prove it. Or to use formal legal terminology, the tribunal should have taken “judicial notice” of this disparity. The EAT added that things could change in the future, but that there was plenty of current evidence that the childcare disparity still persisted.

We don’t know the final outcome in either of these cases, since both will be remitted to an employment tribunal for it make a ruling on whether the imposition of the PCP by the employer was justified. However, even without knowing the final result, both cases illustrate the discrimination risks employers can face when imposing “one-way flexibility” on their staff.