15 January 2014
Other Cases Where a Refusal to Allow Flexible Working Was Held to Be Unlawful
The last Bitesize considered the UK case of London Underground Ltd v. Edwards in which a small percentage of women could not comply with a new roster mechanism. However, the risk of being sued for unlawful discrimination for failing to consider or grant flexible working is certainly not limited to requests by women.
A man could bring a claim of direct sex discrimination if, for example, his request to work flexibly was not considered seriously in circumstances where a similar request made by a woman would have been given proper consideration. Although claims such as this are less common, precisely this question arose in the English case of Walkingshaw v. John Martin Group where a man was denied the right to work part-time following his wife's maternity leave. Mr. Walkingshaw successfully claimed direct discrimination because women in the firm were regularly allowed to work part-time.
This is not just a sex issue. If an employee who requests to work flexibly has the responsibility for the care of an immediate family member then the employee would be protected from any act of discrimination on the grounds of their family status under the Family Status Discrimination Ordinance. Similarly, if an employer absolutely refuses to allow, say, a Jewish person to leave early on Friday (strict Judaism dictates that the Sabbath runs from nightfall on the Friday) then this could amount to unlawful race discrimination under the Race Discrimination Ordinance.
Although there have not been any cases on this aspect of the discrimination legislation in Hong Kong the framework is in place for a claim and the Equal Opportunities Commission is always looking for targets. Employers beware!