It has been reported this week that two members of the Green Party are challenging parliamentary rules which prevent MP from job sharing. Sarah Cope and Clare Phipps attempted to submit a joint application to stand as an MP during the general election earlier
this year, but the application was rejected by the returning officer for their parliamentary constituency.
Sarah Cope is the main carer for two young children and Phipps suffers a disability, so each of them would be unable to take up the role of MP on a full-time basis, individually. They argue that preventing them from undertaking a job share is a breach of
both the Human Rights Act 1998 and the Equality Act 2010 and, further, that these policies are wasting untapped talent that could benefit parliament greatly.
Flexible working has been a hot topic of late following the one year anniversary in June 2015 of the implementation of the Flexible Working Regulations 2014, which gave every employee the right to make a formal request for flexible working after 26 weeks
service, which the receiving employer must consider. More information about the obligations on employers when presented with a formal request for flexible working can be found in our article
Also in the news recently was the publication of a report by the Equality and Human Rights Commission which said that 11% of female employees who returned from maternity leave were treated so badly by their employers that they were effectively forced out
of their jobs. The women’s complaints included the failure to allow them to undertake flexible working or to provide other forms of support and treating them worse than other employees.
The EHRC report also observed that, where mothers were allowed to work flexibly more than half of respondents to the survey said that they felt their careers suffered as a consequence. Examples of where this feeling came from were that they missed out on
promotion opportunities and were given less responsibilities.
Since the Court of Appeal dealt with the question of indirect sex discrimination in the case of London Underground Ltd v Edwards (No 2) in 1998, accepted that women have the greater burden of childcare and therefore (in that case) a new shift pattern could
have a disproportionate impact on women, it has been possible to argue that “inflexible” policies or refusal to implement any flexible working disproportionately affects female employees and therefore that it amounts to unlawful indirect sex discrimination.
As ever, the argument is not guaranteed to succeed because it depends on the circumstances of the case as well as the possibility for such a policy to be objectively justified, but employers need to be aware of the potential impact of inflexible policies on
women and the potential for unlawful discrimination claims.
Not only is discrimination against an employee on the grounds that they work part-time (or indirectly on grounds of their sex) unlawful, flexible working is increasingly important to employees considering new job opportunities. Whilst there has been no reported
influx of flexible working requests for employers over the last twelve months from employees without caring responsibilities, anecdotally it seems that both socially and in business circles, there is a growing understanding that increasingly flexible working
practices can benefit individuals and businesses.
Furthermore, new technology and a new generation of people entering the labour market make flexible working more manageable, efficient and effective. In the ever competitive market to attract the top talent and cultivate a diverse workforce, employers run
the risk of missing out on the best employees by refusing to implement clear and effective flexible working policies or failing to properly support and treat fairly those employees who do work flexibly.
For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Kim Freeman-Smith of the berg Employment team on 0161 829 2599
or email her at firstname.lastname@example.org.
(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal
advice should be obtained before taking, or refraining from taking, any action as a result of this article.)