SEX DISCRIMINATION - 15.06.2006

Refusing part-time work requests

Part-time dilemma

There’s little doubt that in the minds of many businesses, recent employment law changes have put women with childcare responsibilities in a very strong position. This is particularly the case with their right to request part-time working (it applies to men too). However, it can be easy for you to over-estimate the circumstances where a woman can legitimately ask for this. If you’re not convinced, a recent case gives guidance on when you can turn down a request. What are the key points?

Indirect sex discrimination

When women ask to work part-time, it’s usually because they have responsibility for the care of young children. For this reason, a refusal to allow these requests could lead to allegations of indirect sex discrimination. Under the Sex Discrimination Act 1975, this exists where a “provision, criterion or practice” is applied to both genders, but women are disadvantaged because far fewer are able to comply with it. If this treatment is to the woman’s detriment (disadvantage), it will be discriminatory, unless it can be justified, e.g. on business grounds.

Wanting it both ways

This issue was considered in Ministry of Defence (Royal Navy) v MacMillan 2005. Macmillan (M) had two children and was employed by the Royal Navy. Under a mobility clause in her contract, she was required to transfer to a base which was 60 miles away from her home. As this would require her to make a round trip of 120 miles a day, she was given the opportunity of relocating or moving to accommodation offered to her at the new base. She refused it, knowing that it would prevent her from being able to continue working the flexible, full-time hours that she had previously negotiated. These were to allow her to look after her younger child for part of the week. As a result, she asked to work part-time. This was refused for operational reasons. She claimed indirect sex discrimination.

Detriment, what detriment?

The tribunal found in M’s favour, so her employer appealed to the Employment Appeal Tribunal (EAT). It argued that; (1) in order to identify if there had been less favourable treatment, a “pool” of comparators needed to be identified so as to make a comparison with, e.g. the workforce in the Royal Navy; (2) if this had been done, it would show that no other employee, male or female, had suffered from M’s problems of commuting and childcare, and; (3) these problems were purely of M’s own making, meaning there was no detriment. The EAT agreed and allowed the appeal.

Handling requests

Whilst the facts of this case aren’t that common, it does clarify that a woman’s right not to be subjected to indirect discrimination comes second to ensuring that her alleged detriment isn’t of her own making.

Tip. If a part-time working request is genuinely inconvenient for you, look at justifying a refusal on business grounds first. There are numerous reasons available which leave less room for argument.

The next step

For more information on when you can refuse a request, visit http://personnel.indicator.co.uk (PS 08.12.02).