Increasingly, employers are being faced with requests by individuals to work
part-time in order to allow them to cater for childcare commitments as well as
their careers. Such requests are made most often by women returning from
maternity leave. In the increasing climate of "family friendly"
measures, many employers wonder how they should deal with such requests.
The legal background
A refusal to grant such a request could well be indirect sex discrimination.
There are two ways in which an employer can defend a claim of indirect sex
discrimination.
First, where they have sufficient objective business reasons for insisting
that the job continues to be done full-time. This is increasingly difficult, as
tribunals are becoming sceptical of bland assertions that a job must be done
full-time and that "continuity" is important. Tribunals will
scrutinise not only at the practice of the particular employer, but what the
industry is doing as a whole.
Secondly, and more personally, a woman will lose a claim if it can be shown
that in practice she can comply with the requirement to work full-time.
It is becoming increasingly common for evidence to be sought as to the
woman’s financial resources, and those of her partner, in order to seek to
demonstrate that it is, in fact, possible for the woman to work full-time with
full-time childcare.
This approach was given a boost by a recent unreported tribunal decision,
Sykes v J P Morgan & Co UK, in a case concerning a City bank, where a woman
failed in her bid to work shorter hours because she was now a working mother.
It was shown that this woman could afford full-time childcare. The tribunal
made it clear that there was no authority to support the proposition that a
woman may request an adjustment in her usual working hours or place of work in
order to accommodate her desire to be "a certain sort of working
mother".
Other legal issues
The new Part-Timers regulations already in force do not give any legal right
to work part-time, although in a non-legally binding part of the regulations,
employers are encouraged to consider part-time working options and to advertise
new part-time posts widely.
The Government has also recently consulted on the matter, suggesting, for
the first time, that there should be a legal right for both parents to work
part-time, after a child’s birth.
The proposal says that employers could deny this if it could show that there
would be "harm" to the business. Small employers might be exempt from
this new regime. No decision has been taken yet, but now that the General
Election is behind us, it may be an issue which resurfaces in this Parliament.
