Flexibility row | Refusing worker's request for Saturdays off was not sex discrimination, tribunal rules

Refusing worker's request for Saturdays off was not sex discrimination, tribunal rules

A tube driver who was denied Saturdays off to look after her child was not the victim of sex discrimination, an employment tribunal has ruled.

Nicola Jones had asked for alternate Saturdays off for childcare reasons, but her request was denied, eventually leading her to take her employer to tribunal.

Ms Jones had been working for the London Underground since 2001, and had a child in 2013, the tribunal heard. 

She had asked her bosses for the changes to her shift patterns as her husband, a bus driver, worked every weekend.

Drivers based at the Hainault depot, such as Ms Jones, are typically required to work about 50% of weekends, the tribunal heard.

Ms Jones had requested to not work any Saturdays, only every other Sunday, and to only work anytime between 7am and 9pm on all other shifts.

Her request was refused but bosses agreed to a “temporary arrangement that partially met her needs,” the tribunal heard.

This shift-swap arrangement lasted from 2014 until 2020, when Ms Jones was told by her manager that her flexible working arrangement was coming to an end due to the "detrimental impact” it was having on underground services.

She subsequently launched tribunal proceedings against her employer on the grounds of sex discrimination, 

Her appeal was rejected, with employment Judge Stephen Shore stating there was "no evidence before us to show a hypothetical male… would have been treated any differently”.

The judge concluded: “We accept… (the) explanation for refusing the Claimant’s request to be allowed not to work on Saturdays was motivated by a wish to avoid a queue of employees requesting alternate duties on hours which suited them. That reason is not because of sex.”

Flexible working now a day-one right

The case of Ms Jones’ flexible working row may have occurred several years ago, but news of the tribunal result has coincided with big changes in the law surrounding flexible working.

The Flexible Working Bill came into effect on Saturday April 6, 2024, offering employees unprecedented rights to request flexible working conditions from the very first day of their employment. 

At its core, the Bill allows employees to make flexible working requests from day one of their employment.

Workers will also be allowed to make two flexible working requests within a 12-month period, marking a significant shift from the previous allowance of just one request.

Employers are obligated to respond within two months, reduced from the earlier three-month timeframe, and must engage in a consultation process with the employee before denying a request. This move is designed to foster a more transparent and considerate employer-employee interaction regarding flexible work arrangements.

Read more from us

Flexible working under this legislation encompasses a variety of arrangements such as part-time, term-time, flexitime, compressed hours, and varied working locations. 

This expansion of options underscores a commitment to accommodating the diverse needs and preferences of the modern workforce.

Click here to read more from HR Grapevine on the Flexible Working Bill.

Parents sacrificing work & savings due to childcare costs, survey shows

The foremost issue for Ms Jones in this case was the need to look after her child, and she is not alone in her struggle to balance childcare with work.

New research shows that almost three in 10 (29%) adults with a child under five have reduced their working hours or left work because of the cost of childcare.

And the figure is even higher for working mothers, compared to dads, with a ratio of 43% to 15%. Over a third (34%) of this group say the cost of childcare has stopped them from saving for their future.

There are the concerning findings of Phoenix Group, a UK long-term savings and retirement business. Their research found a quarter (25%) of adults with a child under five have reduced their working hours due to childcare costs, and a further 4% have left work entirely. This is resulting in longer term consequences for parents’ retirement saving, as pension contributions decrease or are paused during time away from work.

The research was carried out ahead of the first phase of the government’s childcare support package coming into effect. From April 2024, working parents of two-year-olds will be eligible for 15 hours of free childcare support per week, over 38 weeks of the year.

Phoenix Insights, Phoenix Group’s longevity think tank, previously found that caring responsibilities often fall disproportionately on women, and limited access to affordable childcare means many are left with no choice but to work part-time. This was reflected in the research, which found that women with a child under five were significantly more likely than men to reduce their working hours because of childcare responsibilities (36% compared to 15%).

Increasing working hours with better childcare support

When asked about the extension of childcare support in England, 71% of working parents said they would increase their working hours if they could access the free childcare support. Of those parents currently out of work, 64% said they hoped to return if they could access the additional support.

Boosting income to cover living costs was the primary reason parents gave for increasing their working hours, followed by the ability to save and the desire to focus on career progression.

However, while parents are hopeful to increase their working hours, some report challenges with the availability of childcare which limits their ability to do this. One in six adults with a child under five said they have found it difficult accessing formal childcare, for example through a nursery or childminder.

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