INDIRECT DISCRIMINATION LINKED TO CHILDCARE RESPONSIBILITIES

Over recent years, employment tribunals have been asked to adjudicate on the issue of whether requiring employees to work anti-social hours or weekends can lead to indirect sex discrimination. It has been established for many years that tribunals should take into account the differences in childcare responsibilities between men and women when assessing such claims (i.e. that women bear the greater burden of child rearing and so are less likely to be able to work flexibly).

When a workplace policy mandates anti-social hours or weekend work, it may unfairly affect women with caregiving responsibilities, potentially constituting indirect discrimination. However, employers can justify such policies if they are proportionate and serve legitimate business aims.

This issue had been highlighted in the case of Ms N Jones v London Underground Ltd. London Underground faced a legal challenge when it terminated a flexible working arrangement with one of its drivers, Ms. Jones. She was unable to work Saturdays due to her childcare duties. Previously, she had swapped Saturday shifts with other drivers or taken them as rest days. When London Underground required Ms. Jones to work Saturdays, she submitted a flexible working request, which was refused. Ms. Jones brought claims for both direct and indirect sex discrimination.

Ms. Jones’ direct sex discrimination claim failed. The tribunal found that the explanation for refusing Ms Jones’ request to be allowed not to work on Saturday had been due to London Underground wanting to avoid a queue of employees requesting alternative duties on hours which suited them, and that reason is not because of sex. However, in relation to the indirect claim, the tribunal acknowledged that requiring drivers (including women) to work Saturdays and other potentially unsociable shifts, put women at a disadvantage due to their greater childcare responsibilities.

The tribunal found that London Underground could objectively justify its practice of requiring weekend work due to the fact that it needed to ensure adequate service performance and staffing levels over the weekend. Although this decision was at the first-instance tribunal level, it aligns with an earlier ruling by the Employment Appeal Tribunal (EAT) recognising gender-based disparities in caregiving responsibilities. However, this is a key example of when clear objective justification must be given by employers when implementing certain restrictive policies. A balance must be struck between caregiving responsibilities and business aims, therefore, any decision made by employers must ensure that any potential discrimination is ‘proportionate, appropriate and necessary’. As highlighted within the Ms N Jones v London Underground Ltd case, weekend work and unsociable hours can be necessary parts of the job, therefore employers need to be able to balance the two to ensure proportionality.

What can an employer take from this?

Employers should assess whether weekend/anti-social hours work policies serve legitimate business goals and whether weekend requirements should be reasonably necessary to achieve these aims.

Employers should also consult with staff who may be potentially affected before implementing changes to work patterns. Alongside this, conducting equality impact assessments before introducing anti-social hours or weekend work and clearly articulating the business reasons for such measures in writing would reduce the risk of claims for employers.