fbpx

Imposing contractual hours and Indirect Discrimination

Jul 6, 2021

Balancing childcare responsibilities and work can be a challenge and the pandemic has added complications with the closure of schools and ongoing rules around self-isolation. During the peak of Covid-19, many organisations gave parents greater flexibility to work hours around their caring responsibilities. Now that restrictions are lifting, the reality is that many organisations will be looking to formalise working arrangements and get some structure back. Many employers have looked at amending contractual working hours to allow flexibility within the workforce but can imposing new contractual hours on employees with caring responsibilities give rise to a claim?

Last month, the Employment Appeal Tribunal made two key rulings in favour of working mothers in the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust and Hughes v Progressive Support Limited. Both provide useful reminders that employers should exercise caution when seeking to change or impose new contractual working hours.

Case Summaries

In the case of Dobson, the Claimant was a community nurse and a mother of three children, two of whom were disabled. Her employer sought to introduce a flexible working system which required all community nurses to work weekend shifts. The Claimant told her employer this would not be possible due to her childcare responsibilities and refused to work the new hours and as a result, she was dismissed. The Claimant bought a claim against her employer for unfair dismissal and indirect sex discrimination. The Employment Tribunal initially dismissed both claims and the Claimant appealed.

The Employment Appeal Tribunal said that the Employment Tribunal had erred by not considering that women may not be as flexible to work the same shifts as men due to childcare responsibilities. Even if it may be possible for a woman to comply with the hours, there may be a disadvantage in requiring her to do so.

In the case of Hughes, the Claimant had returned from maternity leave and had agreed a minimum number of hours around her childcare responsibilities. Her employer later withdrew the arrangement and allocated new hours according to their service needs, which did not take in to account the Claimant’s childcare responsibilities. As a result, the Claimant was unable to work as many hours as before, she was not penalised for not working the allocated hours but did lose out financially. Again, the Employment Tribunal dismissed the claim for indirect sex discrimination but, on appeal, the Employment Appeal Tribunal ruled that requiring employees to work certain hours irrespective of childcare needs will amount to a provision, criterion or practice (‘PCP’), even if they are not penalised for not working those hours. It was said that the Employment Tribunal had not properly considered the financial impact on the Claimant.

Both cases have been referred back to the Employment Tribunal for further consideration on the claims.

What does this mean for employers?

We are seeing a significant increase in clients wanting to increase flexibility within their workforce. However, these two cases are important reminders that caution should be exercised when implementing new working arrangements. Before imposing new working arrangements, genuine thought must be given to those who may be placed at a disadvantage because of it, including working mothers, as these arrangements could amount to a provision, criterion or practice.

However, just because an individual is placed at a disadvantage does not mean that it will give rise to an automatic claim. If the provision, criterion or practice being imposed is furthering a legitimate aim, and it is proportionate, you may be able to argue a defence to any potential discrimination claims. It is always advisable to seek legal advice to mitigate any potential claims.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sough as appropriate in relation to a particular matter.

Darren Smith

Darren Smith

Partner, Employment Law

Sign up

Enter your email address for legal updates on Employment & Immigration Law.

Please see our privacy policy regarding use of your data.


Employment Management Training Sessions

Darren Smith, a Partner in our Employment team, will be hosting a series of online training sessions looking at essential employment law for managers. Each session will be £79.95 + VAT.

> How to Avoid the Problems of Recruitment & Probation
> Equality, Diversity & Inclusion
> Absence Management
> How to Performance Manage
> Problems with Social Media & actions outside of the workplace
> Disciplinaries and Grievances
> Conducting a Fair Redundancy Process

Employment Management Training Sessions

Darren Smith, a Partner in our Employment team, will be hosting a series of online training sessions looking at essential employment law for managers. Each session will be £79.95 + VAT.

> How to Avoid the Problems of Recruitment & Probation
> Equality, Diversity & Inclusion
> Absence Management
> How to Performance Manage
> Problems with Social Media & actions outside of the workplace
> Disciplinaries and Grievances
> Conducting a Fair Redundancy Process

Contact us

    The information you submit will be handled in accordance with our privacy policy.

    FREE: Legal Insights and Event News 

    Keep you, your family and / or business up to date on how the law affects you, by subscribing to one of our legal insights.

    Subscribe for free Legal Insights
    & Event updates

    Receive the latest legal developments and professional advice to keep your family and business safe.
    Please choose which list you would like to subscribe to below.





    Please see our privacy policy regarding use of your data.


    Latest News & Insights

    Podcasts

    The Legal Room UK Podcast features a diverse range of specialists offering expertise on a variety of topics. 
    Subscribe on whatever podcast platform you use.

    Top Legal Insights

     

    Contract Law

    Material Breach of Contract

    What is a ‘material’ breach of contract by a party to a commercial contract? This is a critical issue regularly considered by the courts. What constitutes a material breach and what are the remedies?

    Property Law

    Commercial Lease: The Financial impact on Landlord and Tenant

    Coronavirus (COVID-19) and the restrictions now in place to control its spread, are having a significant effect on many business sectors.

    Divorce and Family Law

    Divorce in Lockdown: Can I get some discreet legal advice?

    We have spoken to clients who are unfortunately experiencing some family issues, and would like to obtain expert legal advice, yet don’t know how...

    Land & Property Dispute

    Restrictive Covenants – The Price of Modification

    Having identified that your land is burdened by a restrictive covenant and for the purposes of this article the covenant in question will be that only one residential building can be erected on the land. What do you do next?

    Wills, Trusts and Probate

    Why is having a will so important?

    It is entirely up to you if and when you want to create a Will, but it is important to be aware of the consequences of not having a Will.

    Award winning legal advice

    We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2020 by Legal 500 and Alistair McArthur is ranked in Chambers 2020.

    London

    60 St Martins Lane, Covent Garden, London WC2N 4JS 

    +44 (0) 203 755 0557

     

    Camberley

    Building 2  Watchmoor Park, Riverside Way, Camberley, Surrey  GU15 3YL

    +44 (0)1276 686 222

     

    Wokingham (Appointment only)

    4 The Courtyard, Denmark Street, Wokingham, Berkshire RG40 2AZ

    +44 (0)118 977 4045

    info@herrington-carmichael.com

    © 2021 Herrington Carmichael LLP. Registered in England and Wales company number OC322293.

    Herrington Carmichael LLP is authorised and regulated by the Solicitors Regulation Authority.

    Privacy Policy   |   Legal Notices, T&Cs, Complaints Resolution   |   Cookies

    Client Feedback   |   Diversity Data