Core guidance: Working hours and flexible working
Working hours, flexible working and time off
This guide calls you a worker if you are working for someone else (who this guide calls your employer) in a work situation. Most situations are covered, even if you don't have a written contract of employment or if you are a contract worker rather than a worker directly employed by your employer. Other types of worker such as trainees, apprentices and business partners is 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:
- Your employer must not treat you 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.
- If you are a woman who is pregnant or on maternity leave, the test is not whether you are treated worse than someone else, but whether you are treated unfavourably from the time you tell your employer you are pregnant to the end of your maternity leave (which equality law calls the protected period) because of your pregnancy or a related illness or because of maternity leave.
- Your employer must not do something which (or would have) has a worse impact on you and on other people who share your particular protected characteristic than on people who do not have that characteristic. Unless your employer can show that what they 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.
- If you are a disabled person, your employer must not treat you unfavourably because of something connected to your disability where they cannot show that what they are doing is objectively justified. This only applies if an employer knows or could reasonably have been expected to know that you are 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.
- Your employer must not treat you worse than another worker because you 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.
- Your employer must not treat you worse than another worker because they incorrectly think you have a protected characteristic (perception).
- Your employer must not treat you badly or victimise you because you have complained about discrimination or helped someone else complain or done anything to uphold your 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.
- Your employer must not harass you.
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, if you are a disabled worker, to make sure that you have the same access, as far as is reasonable, to everything that is involved in doing a job (including flexible working and time off) as a non-disabled worker, your employer 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.
- Your employer must make reasonable adjustments to what they do as well as the way that they 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: 05 Jan 2015