You have probably got used to the idea that employees with 26 weeks’ service have been able to request flexible working since April 2007 provided they have caring responsibility. You may even have had requests from such staff and may have said “no” using one of the eight business reasons you are entitled to use under the Flexible Working Regulations such as productivity or customer care suffering. Whilst the flexible working regime in itself poses relatively little risk, provided you follow the correct procedures to meet with the employee to discuss their request, employers who refuse requests are perhaps unwittingly running the risk of discrimination arguments, with this area having become much more complex recently.
Since many carers are women, refusing requests for changes in working hours or patterns can amount to indirect sex discrimination, in which case you would need to be able to objectively justify the refusal or risk an award for unlimited damages. Furthermore, the case of Coleman v Attridge Law & Steve Law has recently set a further cat amongst the pigeons as regards all forms of discrimination. The facts of the case itself involved an employee with a disabled child who claimed she had been discriminated against and harassed by her employer on the grounds of her child’s disability (her complaints related to refusing to allow her to return to her role after maternity leave, failure to be given the same flexibility as employees with non-disabled children, using her child to manipulate her working conditions and not dealing with her grievances inadequately). The Employment Tribunal referred the question to Europe over whether discrimination by association should be protected, as our UK legislation only prohibits discrimination “against a disabled person”.
The Advocate General (whose opinion is usually followed by the European Court of Justice when it rules on the subject) has stated that direct discrimination and/or harassment by association is prohibited by the relevant Directive (Equal Treatment Framework Directive). The rationale put forward was that the dignity and autonomy of the (in this case) disabled person is still being disrespected if the behaviour is indirect. Just because the employee who is the object of discrimination is not disabled herself, makes no difference. The Directive protects against discrimination “on the grounds of” disability, and the “ground” which serves as the basis of the discrimination the employee suffers continues to be disability.
Although the case itself focussed on disability, the Advocate General indicated that the same principle will apply to any of the prohibited grounds listed in Article 1 of the Directive (namely religion or belief, disability, age or sexual orientation). This means that the Directive would, for example, protect a person from discrimination because he or she is married to a person belonging to a particular religious group.
On the face of it, the Disability Discrimination Act 1995 does not prohibit discrimination by association - so, if the ECJ agrees with the Advocate General, the next hurdle for Miss Coleman will be to see if the UK courts are prepared to interpret UK law by, for example, implying additional wording into the DDA to achieve the purpose of the Directive. The same will apply to equivalent claims under the Age Regulations, for example, when an employee who wants to care for their elderly relative asks to work flexibly. In the end, the Government may need to change the relevant legislation if necessary to bring it in line with the Directive.
What will you need to do? Right now, you may decide to wait and see what the outcome is, but assuming Miss Coleman is protected, you will need to amend your equal opportunities and flexible working policies to make it clear that you won’t tolerate this kind of discrimination. You will need to provide refresher training to line managers on dealing with flexible working requests and generally how to avoid discriminating, such as not making negative judgments about reliability for someone who asked in an interview for part-time work because they care for an elderly parent or making allowances when managing absence for someone who was off sick because their child had a medical condition such as asthma. That is not to say you will never be able to refuse flexible working requests or take action when someone has lots of time off work but you may need to make sure you treat requests consistently and consider these issues in the decision-making process.
Morgan Denton Jones LLP
