Is a requirement to work weekends indirectly discriminatory?

In recent years, Tribunals have assessed whether a requirement to work anti-social hours or work over the weekend can amount to indirect sex discrimination. It is well established that Tribunals should take account of childcare disparity between men and women when deciding indirect sex discrimination claims.

Any workplace policy which requires employees to work anti-social hours or work over the weekends may disproportionately affect women with caring responsibilities and so may be indirectly discriminatory, unless the policy can be justified as a proportionate means of achieving an employer’s legitimate business aim.  

So what does this mean for employers who need their staff to work on weekends?

What does the latest case say?

The most recent case related to the London Underground’s decision to end a flexible working arrangement with one of its drivers. Ms Jones was unable to work Saturdays due to her childcare responsibilities. Under her previous arrangement, she swapped her Saturday shifts with other drivers or took them as rest days.  When London Underground ended this arrangement and asked Ms Jones to work Saturdays, she submitted a flexible working request which was refused. As well as other claims, Ms Jones brought claims against London Underground for direct and indirect sex discrimination.

Ms Jones’ claim for direct sex discrimination failed. In respect of the indirect discrimination complaint, the Tribunal accepted that requiring drivers to work Saturdays (and other potentially unsociable shift patterns), put women at a disadvantage because of the “greater responsibility for childcare on women”. However, the Tribunal found that London Underground could objectively justify this practice as it needed to ensure adequate performance of the service and adequate staffing levels over the weekend.

Although this is a first instance tribunal decision, it follows an earlier decision of the EAT which accepted the gender-based disparities in caring responsibilities and that a requirement for weekend working can amount to indirect sex discrimination. This case was remitted back to Tribunal which ultimately held that there was no indirect discrimination. The Tribunal accepted that the employee’s dismissal for refusing to work weekends was reasonably necessary to achieve the Trust’s legitimate aim of providing 24/7 care. An appeal has since been lodged in this case and so we await further news.

What should employers do?

Imposing weekend working can amount to indirect sex discrimination. As the above cases show, what is key is whether such arrangements are to achieve legitimate business aims and whether the imposition of weekend working is reasonably necessary to achieve those business aims.

In the post-COVID world, employees are more willing to challenge working patterns which are inconsistent with their responsibilities or lifestyle. Therefore, we expect further challenges in the future. To help reduce the risk of claims, employers should:

• Consult with affected staff about any changes to working patterns.
• Conduct equality impact assessments before instigating anti-social hours or weekend working.
• Consider “why” the working patterns are necessary (rather than just desired). They will not be considered reasonably necessary if alternatives could have been put in place which would have less discriminatory impact.
• Put in writing the business reasons and why such measures are reasonably necessary, balancing the benefits for the employer against any detrimental impact the arrangements may have on protected groups of employees.