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Hong Kong Family Friendly Bitesize

8 January 2014
Mayer Brown JSM Newsletter

Problems Arising from a Refusal to Grant Flexible Working

The last Bitesize considered the risks to employers of refusing a request for flexible working. This Bitesize considers the leading UK case where the employer got it all horribly wrong.

The leading English law case on indirect sex discrimination is London Underground Ltd v. Edwards (no.2) [1998] IRLR 364. The plaintiff, Mrs. Edwards, claimed indirect sex discrimination in respect of a new roster/shift system for train drivers on the basis that it adversely affected her, a single female parent with a young child.

Under the old roster/shift system Mrs. Edwards was able to work hours which were compatible with her parental responsibilities. The new rostering arrangements were a requirement or condition with which Mrs. Edwards could not comply.

At that time there were 2,044 train drivers in total. Of the 2,044 train drivers, 21 were women. Only Mrs. Edwards (i.e., 1 out of 21) could not comply (i.e., 95.2 percent of women could comply) with the new roster. All 2,023 men could comply (i.e., 100 percent) with the new roster.

The key question before the Court of Appeal was whether 95.2 percent was "considerably smaller" than 100 percent. (This would indicate that the new policy had a disproportionately adverse impact on women as opposed to men.) The Court of Appeal held that it was "considerably smaller" if the numbers were looked at in terms of 4.76 percent of women could not comply whereas there were no men that could not comply. As such London Underground was held to have unlawfully discriminated against Mrs. Edwards notwithstanding that she was the only driver (out of 2,044 train drivers) who could not comply with the new policy.

Since the case of London Underground Ltd v. Edwards the English courts have tended to accept the assumption that women generally have a greater burden of childcare. The cases in this area have largely, therefore, turned upon whether or not an employer's refusal to allow flexible working is justified.

The next Bitesize will consider related cases.


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