Core guidance: Working hours, flexible working and time off
Are you an employer?
This guide calls you an employer if you are the person making decisions about what happens in a work situation. Most situations are covered, even if you don’t give your worker a written contract of employment or if they are a contract worker rather than a worker directly employed by you. Other types of worker such as trainees, apprentices and business partners are also covered. Sometimes, equality law only applies to particular types of worker, such as employees, and we make it clear if this is the case.
Make sure you know what is meant by:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation.
These are known as protected characteristics.
Unlawful discrimination can take a number of different forms:
- You must not treat a worker worse than another worker because of a protected characteristic (this is called direct discrimination).
An employer is considering two requests for flexible working, from workers who do not qualify for the statutory employment right to request flexible working. One worker is a Christian and the other is not. The employer decides to agree only to the Christian’s request, believing they will use the time in a more worthwhile way. This will probably be direct discrimination against the non-Christian because of religion or belief. The correct approach is for the employer to consider the requests by looking at the impact of the proposed working pattern on the organisation, and not at the protected characteristics of the person making the request. This may or may not lead to the same result, but the decision would not have been made because of the protected characteristic of religion or belief, so neither worker would have a claim for unlawful discrimination because of their religion or belief.
- In the case of women who are pregnant or on maternity leave, the test is not whether the woman is treated worse than someone else, but whether she is treated unfavourably from the time she tells you she is pregnant to the end of her maternity leave (equality law calls this the protected period) because of her pregnancy or a related illness or because of maternity leave.
- You must not do something to which has (or would have) a worse impact on a worker and on other people who share a particular protected characteristic than on people who do not have that characteristic. Unless you can show that what you have done, or intend to do, is objectively justified, this will be indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things.
An employer says that senior managers at an office cannot work flexibly. Although this rule is applied to male and female managers, it is likely to have a worse impact on women who are more likely to be combining work with childcare responsibilities. Unless the employer can objectively justify the requirement, this may be indirect discrimination because of sex.
- You must not treat a disabled worker unfavourably because of something connected to their disability where you cannot show that what you are doing is objectively justified. This only applies if you know or could reasonably have been expected to know that the worker is a disabled person. This is called discrimination arising from disability.
An employer insists that all workers have to be in the office by 9am or face disciplinary action. A worker has a mobility impairment that makes travelling in the rush hour difficult. Unless the employer can objectively justify the requirement to be in at that time, this may be discrimination arising from disability, because the disabled worker would be treated unfavourably (being disciplined) for something connected to their disability (the inability to travel in the rush hour).This may also be a failure to make reasonable adjustments.
- You must not treat a worker worse than another worker because they are associated with a person who has a protected characteristic.
An employer allows all staff with children to leave work early one afternoon before Christmas to attend their children’s school play or show. They assume that a worker with a disabled child will not need this time off so do not give them the same concession. This is likely to be direct discrimination because of disability on the basis of the worker's association with their disabled child.
- You must not treat a worker worse than another worker because you incorrectly think they have a protected characteristic (perception).
- You must not treat a worker badly or victimise them because they have complained about discrimination or helped someone else complain or done anything to uphold their own or someone else’s equality law rights.
When a worker asks to work flexibly, their employer refuses because the worker helped a colleague with a complaint about discrimination. This is almost certainly victimisation.
- You must not harass a worker.
A worker is given permission by their manager to take annual leave but only after offensive questioning related to their sexual orientation which has made them feel humiliated. This is likely to be harassment
- In addition, to make sure that a disabled worker has the same access, as far as is reasonable, as a non-disabled worker to everything that is involved in doing a job (including flexible working and time off), you must make reasonable adjustments.
An employer has a written policy which covers all types of leave, including what to do if workers are too ill to come to work, how decisions will be made about when annual leave is taken, and on flexible working. As a reasonable adjustment for a disabled worker who has a visual impairment, the employer reads the policy onto a CD and gives it to the worker.
- You must make reasonable adjustments to what you do as well as the way that you do it.
A worker who has a learning disability has a contract to work from 9am to 5.30pm but wishes to change these hours. This is because the friend who accompanies the worker to work is no longer available before 9am. Allowing the worker to start later is likely to be a reasonable adjustment for that employer to make.
Last Updated: 09 Jan 2015