Flexible working claims

Rights to flexible working under the Sex Discrimination Act and Employment Rights Act.

A refusal of flexible working for female employees, in order to combine work and childcare, may be indirect sex/marital discrimination where the inflexible hours (such as full-time work, long hours, overtime, rotating shifts) are ones which women generally cannot work and which the employer cannot justify.

Indirect sex discrimination is where:

• a provision, practice or criteria is applied to the woman (such as to work full-time or long hours);
• the PCP puts or would put women at a particular disadvantage when compared with men; it is well established that, for example, the majority of part-time workers are women so a requirement to work full-time disadvantages women (because of their childcare responsibilities);
• the woman is put at a disadvantage; and
• the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.

Employees with one year's service can also follow a statutory procedure to ask their employer to vary their hours (the number of hours and time worked) and place of work in order to care for children under 6 or disabled children under 18. The employer must go through a prescribed procedure but can refuse on specified grounds. The employee can bring a claim against the employer for a breach of the procedure but the maximum compensation is about £2,500.00.

For further information see the Flexible Working section on the Equality and Human Rights Commission website that was written by Camilla Palmer and former Leigh Day consultant Joanna Wade, and Maternity and Parental Rights, 3rd edition by Camilla Palmer, Joanna Wade and others, published by Legal Action Group 2006.

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