Working hours and work organisation
[ch 7: pages 262-263]Working hours, and changes to work arrangements, can impact unfavourably on workers with protected characteristics.
As regards religious observance, special rules under the Sunday Trading Act 1994 protect some retail and betting shop workers in relation to demands for Sunday working (see Chapter 4: Working Hours).
For other workers, Sunday working is normally a matter for the employment contract, although issues of religious discrimination can sometimes be important. As always, the context is crucial, as this Court of Appeal ruling demonstrates:
A Christian care home worker who wanted to “keep Sunday special” lost her claim for indirect religious discrimination. The employer had an express contractual right to demand Sunday working, and the Court of Appeal ruled that insisting on Sunday working in this case was a lawful and proportionate means of achieving a legitimate aim. In particular, the children in the care home had complex needs, and needed continuity of care. Male and female experienced staff needed to be constantly on duty. Always giving the same worker Sundays off made it impossible for other staff to take the leave they wanted and led to increased costs through greater use of agency staff. The claim was dismissed.
Mba v the Mayor and Burgesses of the London Borough of Merton [2013] EWCA Civ 1562
Here is another good example, concerning a request for time off during the working day for religious observance:
Mr Cherfi, a G4S security guard, lost his claim for indirect religious discrimination when G4S refused to let him leave work at lunchtime for Friday prayers at the local mosque. The EAT said G4S’s refusal was a proportionate means of achieving a legitimate aim – to perform its contractual obligations to provide a functioning security service. G4S had taken reasonable steps to accommodate Cherfi’s religious beliefs by providing an on-site prayer room and offering to vary Cherfi’s working hours so that he did not work on Fridays.
Cherfi v G4S Security Services Limited [2011] UKEAT 0379/11/2405
Disputes over working hours can also involve issues of sex or pregnancy discrimination. Many successful cases have involved requests for adjustments to working hours and working patterns for female workers with care responsibilities. Here are some examples:
• in Chief Constable of Avon and Somerset Constabulary v Chew [2001] UKEAT/503/00/2809, it was held that given the size of the workplace and the fact that the proportion of women was quite small, a refusal to accommodate requests for a part-time working pattern that did not involve weekend working was indirect sex discrimination;
• paying a bonus in return for agreement to work different shifts, from a five day week to a seven day continental 3-2-2 shift pattern (“disturbance payments”) only to a group of mainly male workers, on the basis that the women were less determined than the men to challenge the new shift arrangements was sex discrimination (MFI v Bradley and others [2003] UKEAT 1125/02/2107);
• insisting on office-based and full-time working, and refusing a woman’s request to work from home due to difficulties with childcare was sex discrimination (Lockwood v Crawley Warren Group [2000] UKEAT 1176/99/2806);
• refusing a discretionary loyalty bonus to reward an “orderly and effective” relocation from one office to another, to employees who were on maternity leave during the relocation was sex discrimination (GUS Home Shopping Limited v Green & Another ([2000] UKEAT 994/99/2709);
• introducing a new shift pattern which meant that a female worker with a young child would have had to work unsocial hours could be indirect sex discrimination (London Underground v Edwards [1995] IRLR 355);
• imposing a mobility clause in circumstances where fewer women could comply with the requirement was sex discrimination (Meade-Hill v British Council [1995] IRLR 478); and
• failing to notify employees who were on a career break of the availability of voluntary redundancy was sex discrimination, where the evidence showed that women take proportionately longer career breaks than men (HM Land Registry v Benson [2011] UKEAT/0197/11).
The rules on making a request for flexible working are relevant here. They are set out in Chapter 9. The refusal of a request to work flexibly can also amount to sex discrimination in appropriate cases.
LRD guide, Supporting pregnant workers – a union rep’s guide, September 2016 (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1838).