Is it discrimination if my employer refuses my request for flexible working?

We’re reminded again and again in the press that it’s important to strike a healthy balance between home life and work. But that’s not just a nice-to-have if you have caring responsibilities, and it can actually be a great help when your employer agrees when you request flexible working.

What is flexible working?

Flexible working can operate in various ways. It can be a flexitime system whereby you work an agreed number of hours, with the starting and finishing times outside the normal working times for the business. But it can also operate such that you work the same number of hours in a shorter time frame, e.g. you work four days a week instead of five. But flexible working can extend further than that, and may also include:
• Working part time or during term times only
• Working certain agreed core times, where you’re free to organise your work time outside of those hours
• Working from home part or full time
• Job share

When do you have the right to request flexible working?

You have to meet certain criteria to be eligible to ask for flexible working. These are:
• You’re an employee
• You’ve worked for your employer for at least 26 weeks
• You aren’t the type of worker who is not entitled to flexible working, e.g. an agency worker

It’s worth noting that you don’t have to have caring responsibilities to be eligible to request flexible working. And even if you aren’t eligible to request it you can still make an informal request.

Flexible working and discrimination

When is a refusal considered discrimination? If you put in a request for flexible working and your employer refuses, they may be in breach of flexible working regulations. However, you may also be suffering unlawful discrimination under the Equality Act 2010. In the case of the latter, this means you can make a complaint and potentially submit a discrimination claim. Unlawful discrimination may have occurred if your employer makes their decision because of a protected characteristic. This could be with respect to your:
• Age
• Disability
• Marital or civil partnership status
• Pregnancy and maternity
• Gender reassignment
• Race
• Religion or beliefs
• Sexual orientation
• Sex

Examples of discrimination regarding flexible working

To illustrate what we’re explaining, but without seeking to limit the scope of discrimination linked with flexible working, let’s say you have young children:

If you are a woman, and your request for flexible working is refused, this may be indirect discrimination. Why? Because if your employer has a policy against flexible working, although it applies to all employees equally it can be particularly disadvantageous to women, because statistically they are more likely to be the main child carers. You would need to be able to show that you have been personally disadvantaged in this instance.

If you are a man, and your request for flexible working is refused, this may be direct discrimination if you can show that a woman in your situation would have had their request accepted.

As you can imagine, there are so many examples which could pertain to each protected characteristic that it’s hard for us to include them here. However if, having read this, you believe that you are suffering, or have suffered, discrimination with respect to a request for flexible working, then please do give us a call. It always helps to know where you stand.


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