The Tip of the Flexible Working Iceberg? - Employment Law News Sring 2003

01 April 2003

A cautionary word to employers: the new statutory right for parents to request flexible working is just a small piece of the legal jigsaw. Outside its narrow confines lies the broader domain of discrimination, in particular indirect sex discrimination under the Sex Discrimination Act. This may be more fertile territory for mothers seeking some latitude from ‘normal' working hours etc. Where a woman is refused flexibility from some provision, criterion or practice (and this could very well relate to an aspect of the hours, time or place of her work) which is to the detriment of a considerably larger proportion of women than men, which is to her detriment and which the employer cannot show to be justifiable irrespective of sex, there is the basis of an indirect sex discrimination claim.

Further, these claims can be made by the broader category of workers, whatever their length of service (not just employees with 26 weeks' service as the new right requires); tribunals have greater power to examine the employer's decision; and they can award compensation of an unlimited amount.

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