Carers whose flexible working requests are refused can experience discrimination if the refusal amounts to less favourable treatment because of their sex.

Sex discrimination related to caring responsibilities might be due to:

Direct Sex Discrimination

Direct discrimination can occur when a carer is treated less favourably on the basis of their gender.

For example, the employer believes that men should not have caring responsibilities.

Indirect Sex Discrimination

Indirect sex discrimination can occur when an employer has a policy or practice that does not apply to everyone.

For example, if the employer requires working practises that are difficult to make work around childcare responsibilities, such as changeable hours, this could disadvantage women as they tend to have more childcare responsibilities than men and therefore be considered indirect sex discrimination.

Harassment

Harassment on the basis of sex where an employer stereotypes employees based on gender, parenting or caring roles.

For instance, if an employer makes unwanted comments based on assumptions about a woman in connection with caring responsibilities.

The Equality Act 2010 protects against discrimination on the basis of disability. If you have a disability, you will be eligible to request reasonable adjustments, such as flexible working.

For example, you could ask to be allowed to work flexibly, work part-time, or have different working hours because of your disability needs. If your employer fails to agree to your request, you may have a case for failure to make reasonable adjustments.

Perhaps more relevant to those with caring responsibilities are direct and indirect associative disability discrimination. These forms of discrimination occur when someone is treated less favourably than someone else because of being associated with a person (e.g., a child or dependant) with a disability.

The definition of disability under the Equalities Act 2010 is a physical or mental impairment which has a substantial or long term (i.e., more than 12 months) adverse effect on someone’s ability to carry out normal day-to-day activities.

For example, when an unpaid carer for someone with a disability is treated less favourably than someone else because of being associated with a person who meets the disabled definition under the Equality Act.

It is unlawful to treat someone less favourably because they are associated with a person who has a disability.

For example, if a parent of a disabled child is treated less favourably than the parent of non-disabled children in terms of flexible working because they have a disabled child.

Indirect disability discrimination by association is still a new area of law, but more cases are being heard at employment tribunals.

Indirect associative disability discrimination could occur for carers when an employer imposes a working practice that puts those caring for someone with a disability at a disadvantage compared to those who do not care for someone with a disability.

An employer can only justify the requirement or practice if it is a real business need, and the employer could not achieve the need by less discriminatory means.

The Mrs Follows case is a perfect example. Mrs Follows was the principal carer for her disabled mother. Her employer decided that she could no longer work from home on a full time basis due to a need to provide on-site supervision. Because of her caring responsibilities, Mrs Follows could not meet this demand and was dismissed. The tribunal accepted that carers for disabled people were less likely to be able to be office-based than non-carers, and as such Mrs Follows was put at a substantial disadvantage because of her association with her mother’s disability. Her employer could not objectively justify the requirement to go in to work at their premises, so the tribunal upheld the claim of indirect associative disability discrimination.

This decision in the Mrs Follows case does not change the law in the UK as Employment Tribunal decisions are non-binding and do not change UK laws. This means that other tribunals are not required to follow them. A higher court must consider the issue and make a decision for the matter to become law.

Discuss the issue directly with your employer first and try to find a solution. Don’t shout about discrimination. Instead, tell them that you believe you might have been treated unfairly because of a protected characteristic.

If informal discussions fail, you can explore raising a grievance. You need to do this prior to going to an Employment Tribunal although this will probably irrevocably damage your relationship with your employer.

Seek advice from ACAS, your union or Citizens Advice.