Flexible Working and Discrimination: Legal Risks for Employers

Refusing flexible working requests carries discrimination risks that go far beyond the flexible working legislation itself. Understanding these risks is essential for employers.

Two Separate Legal Frameworks

Framework 1: Flexible Working Legislation

Employment Rights Act 1996

• Right to request flexible working
• Can refuse for 8 business reasons
• Compensation capped at 8 weeks' pay (£5,600 max)
• 3-month time limit for claims

Framework 2: Equality Act 2010

Discrimination law

• Protects people with protected characteristics
• Indirect discrimination if policy/practice disadvantages protected group
• Failure to make reasonable adjustments (disability)
• NO cap on compensation
• 3-month time limit

Key point: You can refuse flexible working for valid business reason but STILL be liable for discrimination.

Protected Characteristics

Under Equality Act 2010:

• Sex
• Disability
• Age
• Race
• Religion or belief
• Sexual orientation
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity

Flexible working requests often relate to these characteristics.

Indirect Sex Discrimination

The Risk

Women are more likely to:

• Request flexible working (especially mothers)
• Need reduced hours for childcare
• Request term-time working
• Be primary carers

If you refuse flexible working requests:

• May disproportionately affect women
• Can be indirect sex discrimination
• Even if refusal is "legitimate" under flexible working law

Legal Test

Three questions:

1. Do you have a provision, criterion or practice (PCP)?

   • Yes: Refusing flexible working requests / requiring full-time office attendance

2. Does it put women at a particular disadvantage?

   • Yes: Women more likely to need flexibility for childcare

3. Can you objectively justify it?

   • Must show it's a proportionate means of achieving a legitimate aim
   • Business need must be genuine and proportionate

Objective Justification

Not enough to say: "It's inconvenient" or "We prefer everyone in office."

Need to show:

• Legitimate aim - genuine business need
• Proportionate - no less discriminatory way to achieve it
• Evidence - concrete reasons, not assumptions

Examples:

May be justified: "This customer-facing role requires in-person presence Mon-Fri 9-5 to meet contractual SLAs. We cannot reorganize without recruiting (£20k cost we can't afford) and clients are unwilling to accept different contact patterns."

Not justified: "We like everyone in the office for team culture."

Common Scenarios

Scenario 1: Refusing Part-Time After Maternity

High risk: Very common pattern, clearly affects women disproportionately.

What you need: Strong business justification. Have you genuinely explored job share, redistribution, recruitment?

Scenario 2: Refusing Remote Working to Mothers

High risk: If you allow men to WFH but refuse women (especially mothers), clear direct discrimination.

Ensure: Apply same criteria to all. Document business reasons consistently.

Scenario 3: Requiring Full-Time for Promotion

High risk: Policy that all managers must be full-time indirectly discriminates against women.

Alternative: Assess whether role genuinely needs full-time or whether part-time could work.

Reasonable Adjustments (Disability)

Different Legal Framework

If employee is disabled and needs flexible working as a reasonable adjustment:

Equality Act 2010 applies:

• Duty to make reasonable adjustments
• Much higher threshold to refuse than standard flexible working
• Can only refuse if genuinely not reasonable
• Cannot refuse just for business convenience

What's a Reasonable Adjustment?

Factors:

• Size and resources of employer
• Cost of adjustment
• Effectiveness for employee
• Practicality

Examples of reasonable:

• Working from home for mental health condition
• Reduced hours for fatigue-related disability
• Flexible start times for medication side effects
• Avoiding early mornings for condition requiring sleep

Examples that might not be reasonable:

• Request that fundamentally changes the role
• Excessive cost for small employer
• Makes role unworkable

Two-Stage Process

When disabled employee requests flexible working:

Stage 1: Consider under flexible working legislation

• Can you refuse for one of 8 grounds?

Stage 2: Consider under Equality Act

• Is it needed as reasonable adjustment?
• If yes, is it reasonable to make?

Apply whichever is more favourable to employee.

Key Difference

Flexible working: Can refuse if business impact too great (one of 8 grounds).

Reasonable adjustment: Can only refuse if adjustment itself is not reasonable, not just because it's inconvenient.

Age Discrimination

The Risk

Older workers more likely to:

• Request reduced hours (phased retirement)
• Need flexibility for health appointments
• Request adaptations for health conditions

Refusing may:

• Indirectly discriminate against older workers
• Force early retirement
• Be age discrimination

Justification Needed

If policy/practice disadvantages older workers:

• Need objective justification
• "We need everyone full-time" often not enough
• Consider phased retirement options

Other Protected Characteristics

Religion or Belief

Requests for:

• Particular days off (Sabbath, Friday prayers)
• Time off for religious festivals
• Avoiding certain hours (prayer times)

Considerations:

• Genuine religious observance
• Can role accommodate?
• Alternative arrangements possible?

Gender Reassignment

During transition:

• May need flexibility for appointments
• Time off for treatments
• Working from home during social transition

Treat sympathetically - discrimination risk if refused without good reason.

Caring Responsibilities

Not a protected characteristic itself but:

• Women more likely to be carers (sex discrimination risk)
• May be related to disability (if caring for disabled person)
• Indirect discrimination possible

Discrimination Compensation

No Cap

Unlike flexible working claims (£5,600 max):

• Discrimination compensation is unlimited
• Can include injury to feelings
• Financial loss
• Future loss
• Interest

Awards can be substantial - £10,000-£50,000+ not uncommon for serious discrimination.

Injury to Feelings (Vento Bands)

Three bands (2024-25 figures):

• Lower: £1,200-£12,900 (less serious, one-off)
• Middle: £12,900-£38,700 (serious cases)
• Upper: £38,700-£64,500 (most serious)

Plus: Financial losses (lost pay, etc.)

Avoiding Discrimination Claims

Tip 1: Consider Impact on Protected Groups

Before refusing, ask:

• Would this disproportionately affect women/disabled people/other protected group?
• If yes, can I objectively justify it?

Tip 2: Be Consistent

Apply same criteria to all:

• Don't approve men's requests but refuse women's
• Don't treat full-time workers more favourably than part-timers
• Document your reasoning

Tip 3: Explore Alternatives Thoroughly

Don't jump to refusal:

• Job share possible?
• Trial period?
• Modified version?
• Reasonable adjustments?

The more you explore, the stronger your justification if you must refuse.

Tip 4: Get Evidence

Don't rely on:

• Assumptions
• "We've always done it this way"
• Stereotypes (e.g., "part-timers less committed")

Do rely on:

• Concrete business needs
• Evidence of impact
• Genuine attempt to accommodate

Tip 5: Document Everything

Keep records of:

• Request received
• Consultation discussion
• Alternatives considered
• Business reasons for decision
• Evidence gathered

If claim arises: Clear documentation of non-discriminatory reasons is your defense.

When Discrimination Claims Arise

Scenarios

Claim may arise when:

• Request refused and employee believes it's discriminatory
• Employee can show others (especially men) had requests approved
• No clear business justification provided
• Employee disabled and flexibility would have helped

Time Limits

3 months (minus 1 day) from:

• Date of refusal
• End of appeal process

ACAS early conciliation required first (pauses time limit).

Burden of Proof

Employee must show:

• They have protected characteristic
• They were treated unfavorably
• There's a link (facts suggesting discrimination)

Then burden shifts to employer:

• Must show non-discriminatory explanation
• Must objectively justify if indirect discrimination

Case Law Examples

Example 1: Lock v British Gas

Facts: Commission not included in holiday pay.

Outcome: Discrimination because policy had greater impact on men (more men in sales roles). Must include commission.

Learning: Policies can be indirect discrimination even if no discriminatory intent.

Example 2: Part-Time Workers Regulations

Facts: Part-time workers treated less favourably than full-time.

Outcome: Less favorable treatment of part-timers is often indirect sex discrimination (more women work part-time).

Learning: Ensure part-time workers have same opportunities and benefits (pro-rata).

Practical Guidance for Employers

When Receiving Request from Woman/Mother

Don't:

• Assume they're less committed
• Refuse without proper consideration
• Apply stricter standards than to men

Do:

• Consider on merits
• Explore solutions
• Document business reasons if refusing
• Be consistent with how you treat all requests

When Receiving Request from Disabled Employee

Check:

• Is flexibility needed because of disability?
• If yes, treat as reasonable adjustment (higher threshold)
• Consult occupational health
• Consider seriously

When Receiving Request from Older Worker

Consider:

• Phased retirement option
• Retaining experience and skills
• Age discrimination risk if refusing

Key Takeaways

• Discrimination law separate from flexible working law
• No compensation cap for discrimination (vs £5,600 for flexible working)
• Sex discrimination most common risk (women more likely to request)
• Disability - flexible working may be reasonable adjustment (higher threshold)
• Objective justification needed if policy disadvantages protected group
• Explore alternatives thoroughly before refusing
• Be consistent - treat similar requests similarly
• Document reasons - evidence of non-discriminatory decision-making
• Get advice if unsure - discrimination claims are expensive

Discrimination risks transform flexible working from an employment rights issue into a much more serious legal matter. Approach all requests with discrimination awareness and document your reasoning carefully.