Women currently have a unique protection from discrimination when it comes to childcare obligations - that of indirect discrimination. Indirect sex discrimination occurs when an employer imposes a working practice (or PCP) on employees of both sexes, but the practice puts members of one sex at a particular disadvantage, and the practice cannot be justified by the employer as genuinely necessary for the business. To be successful therefore a claimant needs to show that not only were they subjected to a disadvantage, but that they are also a member of a group who share the same protected characteristic and who are also at that disadvantage.
Women are able to claim indirect discrimination in this scenario because statistics support the argument that more working women than men have childcare responsibilities and therefore women as a group are disadvantaged. Men may be subject to the same individual disadvantage but an indirect discrimination claim will fail because statistically men with childcare responsibilities are in the minority.
Men are not entirely unprotected in this scenario. If a full time working requirement is in place, and a request to work flexibly is not seriously considered because it comes from a man, when the same request made by a woman would have been properly considered, then a claim of direct sex discrimination could be successfully brought by the man. However, this only works where the male claimant can demonstrate that a women's request would have been granted. If the employer would not have considered a request from a woman either then the man would be without a remedy in a scenario where a female could make an indirect discrimination claim.
We have recently been involved in cases - in both the employment tribunal and the EAT - where this inequality between the remedies available to men and women has been an issue. In Mr M Blackie v Chief Constable of the Police Service Scotland Mr Blackie was a single parent with residential custody of his son. The requirements of his shift work interfered with his childcare responsibilities but a flexible working application was refused. He made a claim to the employment tribunal that he had been directly discriminated against on the grounds of his sex as a female in the same situation would have been treated more sympathetically. He also claimed that he had been indirectly discriminated against on the ground that the requirement to work a variable shift pattern was a PCP that put him at a disadvantage. His direct discrimination claim failed on the facts, the tribunal finding he had not established that a female would have been treated any differently. His indirect discrimination claim failed because he could not establish that, as a male, he was a member of a group who were disadvantaged by the application of the PCP.
When the case got to the EAT it was argued that Mr Blackie had been indirectly discriminated against by association. The argument was based on an ECJ case in which it was held that a person need not possess a protected characteristic in order to bring a claim for indirect discrimination, it is sufficient for that person to show they have suffered a particular disadvantage alongside a disadvantaged group. The case related to a non Roma shopkeeper who was subjected to a detriment by an electrical company alongside his Roma neighbours in a Roma area. The claim was based on the language of the European Race Directive, which shares a near identical definition of indirect discrimination as is used in the Equal Treatment Directive and the Equal Treatment Framework Directive. Although the Equality Act 2010, which implements to the two Directives in UK law, uses a different definition which, on the face of it, would prevent this argument being made by Mr Blackie, because he was an employee of an emanation of the State, he was able to rely directly on the EU Directives when progressing this argument.
Unfortunately for Mr Blackie, the EAT judge identified that to raise this new line of argument at the appeal stage could create an unfair disadvantage to the respondent who had not led evidence to address it at the initial tribunal hearing. The argument was therefore not allowed to proceed. However, the judge did accept that by analogy to the non Roma shopkeeper based in the Roma area, Mr Blackie could argue that he belonged to a group (single parents) that were the subject of indirect discrimination and that it therefore did not matter that he was male since he had been discriminated against because of his association with the larger group of female single parents. It is therefore an argument that we could yet see being made before a tribunal at first instance, and there does seem to be some prospect of success if a case has the right circumstances applicable to it.
Should a claim based on this argument be successful it would be a significant progression of the law in this area. It would also arguably be a significant progression for workplace equality. Where men have lesser protection from discrimination than women when it comes to childcare responsibilities it will result in families having to make decisions regarding the role each parent takes in the home based on who is most likely to be allowed to work flexibly. This risks retaining outdated gender roles within both the home and the workplace and that is bad news for fathers and for mothers.
