Flexing the law

23-08-2018 Blog

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Legal columnist Ness Lyons gives the low-down on some of the legal questions around flexible working. The aim of Flexing the Law is to inform you of your legal rights and options around flexible working, so you can successfully fight your corner (hopefully without actually thumping someone – that’s a whole other area of law). 

Flexible working and discrimination

What counts as discrimination when it comes to flexible working requests?
‘Direct discrimination’ at work is where an employer treats someone worse than another employee because they have a ‘protected characteristic’. For example, by turning down a flex request because – whether overtly or covertly – of that employee’s protected characteristic, rather than the impact of the proposed working pattern.
‘Indirect discrimination’ is where an employer does something that ends up having a worse impact on employees who have a particular protected characteristic… unless the employer can prove that they had a good business reasons for doing so. Common examples of indirect discrimination might be policies or a workplace culture that adversely affects employees with disabilities or part-time workers (as more part-time workers are women, this could mean sex discrimination).
NB The test when a woman is pregnant or on maternity leave is not whether she was treated worse than someone else, but whether she was treated unfavourably for reasons relating to her pregnancy. This covers the period from telling her employer she was pregnant until the end of maternity leave.

What are the ‘protected characteristics’?
The nine protected characteristics under the Equality Act 2010 are:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

The Citizens Advice Bureau has a good webpage on ‘Discrimination at work – flexible working’. It sets out your rights and the situations where an employer may be unlawfully discriminating against you by turning down your request. It also lists organisations to turn to for advice, including the EASS (Equality Advisory and Support Service) below.

What should you do if you think you’ve been directly discriminated against regarding your flexible working request?
First you need to make sure that you have been treated unfavourably compared to someone who is in a very similar situation to you, but who does not share your protected characteristic(s) – this person is called ‘a comparator’. You need to be able to show that your employer treated their request more favourably than yours despite the same business impact applying.
If you have a trade union, this is the time to go to them for advice. (And if you’re reading this and aren’t a member of one but could join – their help is invaluable and will save you a lot of money for legal advice should you have an employment issue.)
If you’re not sure if you’ve been treated unfairly, you can submit some questions to your employer, which they have to answer under the Equality Act 2010. The arbitration service ACAS has a guide on what to ask. If you’re not satisfied, you can appeal, and there is a brief outline on appealing against a declined flexible working request on the gov.uk site.
Your last legal recourse – and you’ll want to carefully consider this – is to make an unlawful discrimination claim to the Employment Tribunal. You need to submit your claim within three months of the discrimination occurring. You don’t need any set length of service with the organisation to bring a claim, although bear in mind that under the Flexible Working Regulations 2014 you’ll have needed 26 weeks’ service before being legally entitled to make the original flexible working request.

Further advice
The EASS provide advice on all types of equality and human rights issues in the UK, Wales and Scotland, through their website and excellent helpline: Freephone telephone 0808 800 0082 / Text phone 0808 800 0084.
ACAS provides free advice and information for both employees and employers through its phone and online helplines.

CASE STUDY: MISHA
Misha* is a university lecturer who had been working for a higher education institution for several years when her daughter started school. The change in hours, and the cost and availability of childcare, meant that her only feasible option, as a single mother, was to adjust her hours and only work in term-time.
Her colleague Sarah* had just been allowed to work term-time only, so Misha submitted her own request. It was denied. The institution told her this was due to “business reasons” and that she was needed during the summer holidays. Yet they hadn’t said this to Sarah, who had the same role and who, unlike Misha, had also been asking to work from home a few days a week.
Misha felt that her employer wasn’t being entirely truthful and went straight to her trade union for advice. They asked if she had a comparator and Misha told them about Sarah. In the appeal meeting that followed with the Dean of the university and HR, Misha’s trade union representative put forward her case: Sarah and Misha were the same age, same role, same grade, same experience. There was only one difference between them in terms of characteristics: Sarah was white and Misha was the only black faculty member. In the trade union representative’s opinion, it was a clear case of race discrimination.
The head of HR replied that the university “took diversity extremely seriously” but the point had been made. Misha says she’ll “always remember the Dean looking down at the comparator sheet in front of her and then back at me and saying: ‘you certainly know how to dot your ‘i’s and cross your ‘t’s.” Shortly afterwards, Misha received a letter notifying her that request for flexible working had been accepted.
But the experience left her feeling undervalued by management and within two years she left.

Next time
Next time, we’ll be looking at flexible working and disability discrimination specifically.

Ness Lyons is a writer and legal education consultant. A former employment lawyer, Ness is currently a non-practising solicitor and an associate member of the Employment Lawyers Association. She has written about workers’ rights for The Stage and about other matters for The Pool and other publications. Also a playwright and spoken word poet, Ness’s work has been performed at various theatres in London.  
nesslyons.com @lyonsness

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