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Being Inflexible Could be Discriminatory!
A recent case acts as a timely reminder to employers that insisting employees work specific hours can, in some cases, amount to indirect sex discrimination. This notion almost seems to lack any common sense – surely a business should be allowed to dictate the hours of work it needs to be covered and can offer to employees/prospective employees?
In short, the law does recognise that a business needs to determine what hours of work need to be covered in order to operate successfully. This would be what is known as a legitimate aim and can be used to defend any allegations that a particular working practice, such as shift work or working full time, places a certain group of individuals (here women with child care responsibilities) at a substantial disadvantage.
Direct and Indirect Discrimination
Under the Equality Act 2010, discrimination can be either direct or indirect and applies to any protected characteristics such as race, sex, religion, disability etc.
Direct Discrimination occurs where, because of a protected characteristic, a person (A) treats another (B) less favourably than (A) treats or would treat others. It is not possible to objectively justify Direct Discrimination.
Indirect Discrimination is a type of discrimination that occurs where (A) applies to (B) an apparently neutral provision, criterion or practice (“PCP”) that A would apply equally to others, but which puts or would put those who share (B)'s protected characteristic at a particular disadvantage. The example of less women (who predominantly pick up the child care responsibilities) being able to comply with set working hours i.e. night work or 9am to 5pm is a classic example of a potential indirect discrimination.
Indirect Discrimination is sometimes much more difficult for an employer to avoid as it can be entirely innocent actions of an employer which in any event amount to indirect discrimination.
Provision, Criterion or Practice (“PCP”)
There will be no discrimination if the provision, criterion or practice (“PCP”) is objectively justified i.e. the PCP is a proportionate means of achieving a legitimate aim. So where an employee alleges that the working hours are indirectly discriminatory, the employer will then need to justify its requirement of those particular working hours.
This issue typically arises when a female employee returns from maternity leave and makes a request for flexible working or from prospective female employees who apply for a job but then enquire about doing the job on a part time basis to accommodate child care.
A similar issue arose in the case of XC Trains Ltd v CD Aslef & Others where the Company introduced a PCP that all employees were required to work over 50% of rosters and on Saturdays. On the face of it this appears to be a neutral PCP as it applied across all employees regardless of gender or race.
However, the employee (a single mother who had 3 children under the age of five) had significant difficulty in meeting her childcare needs and fulfilling her obligations under her full-time contract. With no movement on the structure of the hours (despite a flexible working request with various alternative proposals offered by her), the employee brought a claim for indirect discrimination. The Tribunal agreed that she had suffered indirect sex discrimination as a result of the PCP as it placed females, including herself, at a particular disadvantage, because fewer women than men could comply with the PCP. This was on the basis that a woman is more likely to have responsibility for childcare.
The employer defended the claim on the basis that it had a legitimate aim and the PCP was a proportionate means of achieving that legitimate aim.
A legitimate aim may be shown if the employer can demonstrate that there is a real need to provide a particular service at a particular time. Cost can sometimes be relevant to justifying the need to impose the PCP but is rarely sufficient on its own.
Where these cases often fail is on the issue of whether or not the PCP is “proportionate” which is far more difficult to prove. The obligation on the employer is to show r that the PCP was reasonably necessary in order to achieve the legitimate aim. This is always going to depend on individual facts and this is why it is worthwhile considering these issues before pushing ahead with a PCP.
In XC Trains the Tribunal held that the employer had failed to think creatively enough to eliminate the potentially discriminatory effects of its shift system.
The employer appealed the case. It was held that the Tribunal were right to say that indirect discrimination had occurred and CD’s struggle to work the shift pattern was enough for her to be disadvantaged by it. However in deciding whether the employer’s policy was a proportionate means of achieving a legitimate aim the Tribunal had exceeded its remit and fallen into error by failing to properly weigh the legitimate aims of the employer against the discriminatory impact of the PCP on the employee. The Tribunal in this occasion substituted its own view, with its own ideas, without considering the employers position properly.
Things to consider
The case highlights the difficult balancing exercise as employer has when faced with a request for flexible working and meeting the needs of the business and the risks of making the wrong decision.
Such circumstances may be relevant to those in the care sector given the requirement often to work night shifts or at the weekends and particularly when rostering staff. However the sector is also one of the most flexible in terms of working patterns available.
Employers should consider the impact of any PCP that they are looking to impose on staff and whether a certain individual or group of individuals may be put at a particular disadvantage as a result. However, there is likely to be an objective justification for requiring employees to work at night or at weekends given the requirement to provide around the clock care in certain circumstances.
*All information is correct at the time of publishing