June is seen internationally as Pride Month, a tradition that dates back to 1970 when people gathered in New York City to commemorate the anniversary of the Stonewall Uprising the year previously. The name derived from a series of raids and protests at the Stonewall Inn, a gay bar located in Manhattan’s Greenwich Village. Since then, members and friends of the LGBTQ+ communities around the world have come together each summer to celebrate positive change and demonstrate for further equal rights through marching in Pride parades.
The promotion of inclusivity is simply being fair, equitable and humane, and extensive legislation exists to promote it and help guide organisations through difficult situations.
Organisations are prohibited from discriminating against individuals through the Equality Act 2010 which includes protected characteristics namely; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
The act covers many areas of workforce management and has seven main areas of interest:
- When you recruit someone to work for you
- Working hours and time off
- Pay and benefits
- Career development – training, development, promotion and transfer
- Managing people
- Dismissal, redundancy, retirement and after someone’s left
- Good practice: equality policies, equality training and monitoring
For the purpose of this blog, we shall concentrate on working hours / flexible working only. Further detail covering all of the other aspects can be found here.
Equality Act and Working Hours / flexible working
There is legislation about the right to request flexible working and further detail can be found through government websites but here we discuss in further detail the things to consider when looking at working hours and flexibility.
1.) Avoiding direct and indirect discrimination
When considering the decision about flexibility in most cases you must not be influenced by someone’s protected characteristic. If you do, it could be unjustified direct discrimination.
An example given by the equality and human rights commission is:
An employer bases their decision whether to agree to a request to work flexibly on the worker’s sex. The employer agrees a mother’s request to work flexibly but refuses a father’s request just because he is a man, and the employer believes it is less important for him. This is probably direct sex discrimination, and it would also be a breach of the right to request flexible working if the father had applied under that procedure.
If the decision could have a worse impact on a worker with a particular protected characteristic, and other people who share that characteristic, than it has on people who do not share it then this would be indirect discrimination, unless it could be objectively justified.
A further example is given:
A woman is put off applying for a job to work in a small newsagent’s and convenience store because the job requires working hours of 7am to 3pm, and she cannot combine the early start with her childcare responsibilities. Because it is essential to the very nature of the business is to open early, it is likely that the employer would be able to objectively justify the requirement for the early start. However, the woman and a friend in a similar situation apply to do the job between them. One will take on the early morning childcare for both of them one week while the other works, and then they will swap over. In this situation, if they are between them the best person for the job, it may be indirect discrimination to refuse to allow this arrangement unless the employer can objectively justify the refusal.
It may be more likely that women rather than men combine paid work with caring responsibilities, but you must not make assumptions. If you base your decision on an assumption of a person’s protected characteristics, for example, that a gay man’s request for particular working hours is less important than a straight woman’s, this may result in direct or indirect discrimination.
2.) Making reasonable adjustments to remove barriers for disabled workers and avoiding discrimination arising from disability
To allow a disabled worker to work flexibly or through a change in hours then this may be justified if this removes a barrier to their being able to do the job.
For example:
A disabled worker has to eat at set times to manage their blood sugar for their diabetes, which is only possible by taking their breaks at slightly different times (and therefore working slightly different hours) from those that usually apply within an organisation. This does not have a negative impact on the worker’s ability to do the job; quite the opposite, it removes a barrier which would otherwise stop them doing the job. If this is a reasonable adjustment, the employer must allow the change in hours.
Whether or not you would allow a non-disabled person to work flexibly in the particular job is not relevant. To avoid disability discrimination, you must also avoid treating a disabled person unfavourably when making a decision about their working hours or considering their request to work flexibly if this is because of something connected to their disability, and you cannot show that what you are doing is objectively justified or you know or could reasonably be expected to know that the worker is a disabled person.
3.) Considering requests for changes to hours of work or flexible working on the basis of association with a protected characteristic
The protected characteristic of the person with whom a worker is associated may be relevant if you make a decision based on that protected characteristic.
For example:
An employer offers flexible working to all staff. Requests are supposed to be considered on the basis of the business needs of the organisation, but a manager decides that a man’s request to work flexibly to care for his 90-year-old father is more important than another man’s to care for his 50-year-old wife. If the manager’s decision is based on the age of the person being cared for, this is almost certainly discrimination because of age by association. (It would not be unlawful if the decision was objectively justified, since direct discrimination because of age, unlike because of other protected characteristics, is allowed if justified.) If the manager made their decision based on the fact the person with whom the worker was associated was a disabled person rather than an older person, that too might be direct discrimination by association. The manager should base any decision on the business needs of the organisation, not on the protected characteristics of the people making the requests.
4.) Considering requests for changes to hours of work or flexible working relating to a worker’s religion or belief
Many religions or beliefs have specific times or days that may have more importance than other times, they may require to pray at certain times of day, or to have finished work by a particular time. Some Jews will finish work before sunset on Friday in order to avoid working on their Sabbath, and will not work again until after sunset on Saturday. Devout Christians may not wish to work on Sunday, etc. Other religions have particular times or certain days of the year with restrictive practices such as Islam, where Ramadan requires extended periods of fasting. Special arrangements to support workers through a fasting period is good practice.
Applying a rule regarding particular rest breaks or finishing work by a particular time needs to objectively justified, otherwise this may be indirect discrimination because of religion or belief.
The equality and human rights commission gives three examples:
- An employer imposes a permanent work rota requiring occasional Sunday working. One employee is an active Christian. When the woman accepted the job six months earlier she had told her company that she was unable to work on a Sunday because of her faith. This was accepted at the time. She resigns when told that the change to working Sundays is non-negotiable. This rule has a worse impact on the woman and other Christians for whom Sunday observance is a manifestation of their religion. Applying the rule will be indirect discrimination because of religion or belief unless the employer can objectively justify it.
- A small manufacturing company needs its staff to take their breaks at set times because of the manufacturing process which requires that a process has to be complete before equipment can be left. A worker for whom praying at particular times of the day is a requirement of their religion asks if they can take their breaks at the times when they need to pray, making up the time over the course of the rest of the day. The company considers the request by looking at the impact on the business. Refusing the request may be indirect discrimination because of religion or belief unless the employer can objectively justify it, which it may be able to do if, for example, there is no alternative way of doing the work.
- A large catering company employs a large number of Muslim workers. During Ramadan, when the Muslim workers are fasting as an integral part of their religion, the employer allows them to take extra breaks to help out generally.
5.) Considering requests for changes to hours of work or flexible working relating to a worker’s gender reassignment
A workers right to request flexible working should not be treated less seriously because it is being made by a transsexual person.
For example:
A transsexual person asks their employer if they can compress their working hours into 9 days out of every 10. This is so that on the tenth day they can attend an appointment related to the process of gender reassignment. The employer decides to agree to the request. This is because they have looked at their organisation’s needs and would have agreed such a request if it had been made by someone who was not undergoing gender reassignment. If they had refused because the worker is a transsexual person, this would be direct discrimination because of gender reassignment.
The legislation details far more regarding discrimination as regards time off and age, disability, religion and belief, gender reassignment, pregnancy (sickness and antenatal care) and maternity, paternity and adoption leave. Indeed, this blog has barely scraped the surface of the Equality Act 2010.
But in general, it is seen that organisations have a legal duty to protect the health and wellbeing of their employees. They must therefore consider how any current workers with all these protected characteristics are being treated within their organisation. Any culture of bullying or harassment through “office banter” can leave organisations legally liable. They must ensure they are maintaining a zero-tolerance approach and any acts of misconduct in this area will not be tolerated.
