Over the years there have been many examples of flexible working discrimination in the workplace where employee protection was lacking. Thankfully, in recent years we have seen the UK government introduce a number of regulatory protections. While the process of determining and proving any type of discrimination in the workplace can be challenging, there are experts out there who can advise you accordingly.

When looking at flexible working requests, and allegations of discrimination, we need to separate the terms of the request from the way in which the request was treated. If there is evidence to suggest that an employee, group of employees, experienced discrimination this can open up a whole array of potential legal action.

Different types of discrimination

Under the Equality Act there are many examples of both direct and indirect discrimination. Some of the more common types of direct/indirect discrimination are based upon what are known as protected characteristics, including:-

• Age
• Disability
• Race
• Sexual orientation
• Religious beliefs
• Pregnancy/maternity
• Gender reassignment
• Marriage/civil partnership

So, there will be situations where two separate individuals, let’s say a man and a woman receive the same response to their flexible working request. It is unlikely this will be seen as direct discrimination, as both parties have been treated equally. However, as a woman is statistically more likely to require flexible hours for childcare, this could be deemed indirect discrimination.

Proving discrimination in the workplace

Accusations of discrimination in the workplace, in this instance discrimination due to flexible working requests, are extremely serious. As a consequence, you need to have an understanding of discrimination laws and provide evidence of discrimination. There are two different types of discrimination to consider:-

• Direct discrimination

As the term suggests, this is discrimination directly against you when comparing against somebody else in a similar situation.

• Indirect discrimination

This involves evidence showing that people with the same “protected characteristics” are being or would be disadvantaged to a greater extent than the rest of the workforce.

Even when looking at these two simple examples of discrimination, there are many areas of potential confusion and misunderstanding. Indeed, upon refusal of your flexible working request you may not even realise that you have been discriminated against.

Direct discrimination

In recent years we have seen an increase in the number of potential instances of direct discrimination. In simple terms, you may be able to claim for direct discrimination if you have been treated differently from other workers because of a “protected characteristic”.

Example of direct discrimination

While an employer is unlikely to be so blatant, one example of direct discrimination might involve a gay man adopting a child, looking for help with childcare. If the company’s policy is to give serious consideration to flexible working requests from all parents, an application by a gay employee should come under this condition. So, if the flexible working request was not given due consideration because it was “not company policy” this is direct discrimination.

Indirect discrimination

Indirect discrimination involves a group of individuals, often with protected characteristics, who are disadvantaged by a company policy on flexible working requests. There are numerous examples including those who require a change in their working hours to accommodate religious beliefs/events. While an initial denial of a request for flexible working hours may be perfectly legitimate, and not deemed direct discrimination, it could fail the indirect discrimination test.

In this scenario, those of a particular religious belief (a group not an individual) could be seen as indirectly discriminated against by the company policy. In the event that your employer is able to justify this policy, for example highlighting a negative impact on the business, this would not be classed as unlawful discrimination. All very complicated!

Example of indirect discrimination

The issue of childcare is a perfect example of indirect discrimination. As a woman, if you’re flexible working request was refused because your employer only employed full-time employees, this would not be direct discrimination. As men and women were treated equally, applications for flexible working would receive the same response.

However, it could be argued that in this particular scenario woman, as a group, were a victim of indirect discrimination. If full-time employment was the only option, but this was not possible as a consequence of childcare needs, then women would be disadvantaged to a greater extent than men. The fact that we now have the option for shared parental leave/flexible working hours does to a certain extent complicate this particular argument.

This places a very difficult emphasis on employers. Not only do they have to justify each and every statutory flexible working request which has been refused, but they also need to find the least discriminatory way of maintaining an efficient business. In a situation such as the above, there are rights and obligations on both sides, as well as the need to maintain a cordial long-term working relationship. Not easy!

Discrimination against pregnant women

As we have covered in some of our earlier articles, there are a number of employment protections afforded to pregnant women and those on maternity leave. It is illegal for an employer to treat someone pregnant in the workplace, or on maternity leave, any different from other employees. This might relate to remuneration, holidays, work updates, etc. While there is a balance between too much communication and isolating someone on maternity leave, this is an important issue for employers to consider.

Many of the new rules and regulations were brought in to ensure that those pregnant/on maternity leave were not disadvantaged in the workplace. Historically, some employers took the deliberate decision to treat them differently. This can’t happen now – well it shouldn’t!

Discrimination against carers

As a disabled employee, or an employee with disabled children, employers need to tread very carefully when considering flexible working applications. If your disability, seen as a “protected characteristic”, in any way influences your employer when considering your flexible working application, this is potential discrimination. This can create a difficult balancing act for an employer, taking into account flexible working requests to assist a disabled employee, while not taking their disability into account.

In reality, employers should treat all flexible working requests in the same manner while appreciating their statutory responsibilities and obligations. If able to accommodate a change in working hours, it is unlikely that your employer would reject this, assuming there was no detrimental impact on the business. This is another difficulty, weighing up the benefits of a change in working hours for an employee against the overall impact on the business and the rest of the workforce.

Discrimination is a complex subject

As we have touched on above, there are issues where a decision on a flexible working request will be deemed perfectly legal but under different conditions, potentially discriminatory. We can only assume that employers in the modern era have/are taking advice on how to eliminate discrimination in the workplace.

On the flip-side, as an employee looking to make a formal complaint regarding discrimination, there needs to be proof beyond reasonable doubt. A simple “feeling” of flexible working discrimination, without evidence, will not be enough to prove your case.