If an employer has previously accepted requests for flexible working from female employees, and receives a request from a male employee that it does not want to accommodate, what are the risks of refusing that request?
An employer in this situation is vulnerable to claims on two counts. First, the employee could claim that the flexible working provisions (under s.80G of the Employment Rights Act 1996) have been breached. Second, he could claim direct sex discrimination.
Under the flexible working provisions, employers must deal with requests for flexible working in a reasonable manner. Requests can be refused only on one of a number of permitted grounds. If the request is rejected the employee may claim in the employment tribunal that the employer failed to deal with his request properly, or that it rejected it on the basis of incorrect facts. Therefore, the employer must be able to demonstrate that it followed a reasonable procedure, and that one of the permitted reasons for rejecting the request applied.
A claim of sex discrimination is a potentially more significant risk. This is most likely to arise if the request is for the purpose of carrying out caring responsibilities and requests for this purpose from female employees have been accepted in the past. The employee may bring a claim of direct discrimination on the ground that he was treated less favourably than his female colleagues, because of his sex. The employee in this situation would have actual comparators that he could point to, to establish his case of direct discrimination. However, it would also be possible for him to argue that a hypothetical female comparator in the same post would have been treated more favourably. The employer cannot justify direct sex discrimination. It must be able to show that the difference in treatment was unrelated to the employee's sex.