An employee has complained to our client that the decision to make her work on Boxing Day was ‘discriminatory’ because she has young children to look after. Does she have a case here?
Although our client is free to set their own rules on when staff work over Christmas it is not surprising that an employee is contesting their working time over the festive period. After all, individuals often incorrectly feel that they have a legal right not to work on Boxing Day.
However, Boxing Day is a Bank Holiday, like any other, meaning our client was free to make staff work on this day so long as they still provide individuals with the statutory minimum amount of annual leave throughout the year. Therefore, whilst our client may understandably be concerned about the accusation of discrimination it is important to look at this in more detail.
The fact is that many employees will use the phrase discrimination to complain about something they believe is unfair, without understanding the true meaning of the term. Therefore, it is important to remember that the Equality Act 2010 defines discrimination as an individual being treated less favourably than others due to a protected characteristic.
Whilst being a parent is not necessarily a protected characteristic, previous case law has accepted that women may be able to claim sex discrimination in instances involving childcare, as they are traditionally required to take on the majority of the childcare responsibilities. Having said this, provided our client didn’t purposely chose to rota the employee in on Boxing Day because of their childcare commitments, then they should be safe from any claims of direct sex discrimination.
A slightly different issue may arise if the employee decides to bring a claim for indirect sex discrimination, by arguing that the requirement to make them work on Boxing Day unfairly disadvantages them due to their gender. Despite this, our client should be able to objectively justify this decision fairly easily, by proving that having them work on Boxing Day is a proportionate means of achieving a legitimate business aim.
Although our client faces very little risk of discrimination, they could have considered making adjustments to their rotas over the festive period to keep the employee on side. Given that the employee appears to have outstanding childcare commitments on Boxing Day, our client may have allowed them to work reduced hours or even work from home. Alternatively, our client could have given the employee the opportunity to ask if other workers would be willing to swap shifts with them.
However, before making any special accommodations our client should consider how this will be received by the wider workforce as it may encourage individuals to make similar complaints in the future in the hope of getting preferential treatment on Bank Holidays. (1)
[1] Reproduced with permission on Croner Taxwise