When working patterns create legal risk

The Equality Act 2010 protects employees from discrimination in the workplace. Indirect discrimination can arise where an employer applies the same policy, rule or working practice to everyone, but it has a disproportionate impact on people who share a particular protected characteristic. This is known as a provision, criterion or practice, or PCP.

In cases involving sex discrimination, tribunals recognise that women are more likely to have primary childcare responsibilities. As a result, requirements for flexible working, overtime or weekend working may affect women more than men.

Indirect discrimination and childcare responsibilities

This issue was considered in the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust. Mrs Dobson worked as a nurse and usually worked on Wednesdays and Thursdays. The Trust introduced a requirement for all nurses to work occasional Saturdays. Mrs Dobson argued that this disadvantaged her because of her childcare responsibilities and amounted to indirect sex discrimination.

The Employment Appeal Tribunal agreed that the requirement placed women at a disadvantage as a group and also disadvantaged Mrs Dobson personally. However, her claim was unsuccessful because the Trust was able to show that the requirement was justified and necessary to meet a legitimate business need.

Lessons for employers on indirect discrimination

The case provides four useful lessons for employers:

• Consider both the group and the individual. Tribunals will look at the impact of a policy on the affected group as well as on the individual employee bringing the claim.
• You do not need extensive data. Employers are not expected to carry out detailed monitoring of every policy’s impact on protected groups before they can justify it.
• Explore alternatives. While employees do not have to suggest alternatives, it can help if both sides engage in discussions about possible compromises.
• Build in flexibility where possible. A policy is more likely to be justified if there is some flexibility in how it is applied and the employer has considered reasonable adjustments or exceptions.

Justifying workplace policies in discrimination claims

For HR professionals, the key takeaway is that policies which may disadvantage a particular group are not automatically unlawful. The important question is whether the policy serves a genuine business need and whether the employer has acted reasonably in balancing that need against the impact on employees.

Here to help

Our Employment team at Longmores helps employers review workplace policies and working practices to reduce the risk of discrimination claims and ensure decisions are handled fairly. If you need advice on flexible working arrangements or reviewing workplace policies, please contact Richard Gvero, Senior Partner, Head of Commercial and Employment.

Please note, the contents of this article are provided for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.