Irregular shiftworking patterns is not necessarily sex discrimination

In a recent and well publicised case, Avon and Somerset Constabulary were found to have unlawfully discriminated against a WPC on the grounds of her sex, because it refused to allow her to work regular shifts, in order to take her two children to nursery.

The Employment Appeal Tribunal confirmed that irregular shifts was a requirement that fewer women than men could practically comply with, because proportionately more women than men have childcare responsibilities.  The Constabulary was unable to demonstrate a sufficient operational need for its officers to work variable shifts, with the result that the requirement was not objectively justifiable and therefore amounted to unlawful indirect discrimination.

This case does not alter the law, or create any definite right for working mothers to refuse to work shifts, because it will always be open to the employer to show that its requirements are objectively justified.  Recent legislation, however, has widened the scope of indirect sex discrimination to cover any "provision, criterion or practice" of the employer.  

Also, a report published by the Work and Parents Taskforce, will recommend that in future, employers must give a "good reason" not to let parents of young children work flexible hours, but will stop short of recommending an absolute right for parents to demand this.

Employers are recommended to conduct a wide-ranging examination of all their "practices", to identify and address any potential scope for discrimination claims.  Employers are also advised to give serious, reasoned consideration to requests from working parents for flexible hours.  It will be necessary to show solid, commercial, objectively justified (and well-documented) reasons for rejecting these requests in future.
This document is for general guidance and research purposes only, and does not purport to give professional advice. Please check the date at the top of the article; the Workplace Law Network retains historic articles for general research.