Are men less protected from discrimination in childcare responsibilities?
Should gender play a role in protecting against discrimination arising from family responsibilities?
Women currently enjoy a unique protection against discrimination with regard to childcare obligations – that of indirect discrimination. Indirect sex discrimination occurs when an employer imposes a work practice (or PCP) on employees of both sexes, but this practice particularly disadvantages members of one sex, and the practice cannot be justified by the employer as genuinely necessary for the business. To be successful, a claimant must therefore demonstrate that he has not only suffered a disadvantage, but is also part of a group which shares the same protected characteristic and which is also disadvantaged.
Women can 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 a claim of indirect discrimination will fail because statistically men with childcare responsibilities are in the minority.
Men are not entirely unprotected in this scenario. If a requirement for full-time work is in place and a request for flexible work is not seriously considered because it is from a man, then the same request made by a woman would have been duly taken into account, then a complaint of direct discrimination based on sex could be successfully brought by the man. However, this only works when the male applicant can demonstrate that a female application would have been accepted. If the employer had also not considered a woman’s claim, the man would be without recourse in a scenario where a woman could file a complaint of indirect discrimination.
We have recently been involved in cases – both before the Labor Court and the EAT – where this inequality between the remedies available to men and women has been a problem. In Mr. M Blackie v Chief Constable of the Police Service ScotlandMr. Blackie was a single parent with residential custody of his son. The demands of her shift work interfered with her childcare responsibilities, but a request for flexible work was denied. He alleged in the labor court that he had been directly discriminated against on the basis of his gender, as a woman in the same situation was allegedly treated with more compassion. He also claimed that he had been indirectly discriminated against on the basis that the requirement to work flexible hours was a PCP that put him at a disadvantage. His complaint of direct discrimination failed on the facts, the court finding that it had not established that a woman would have been treated differently. His complaint for indirect discrimination failed because he could not establish that as a man he was part of a group disadvantaged by the application of the PCP.
When the case reached 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 ruled that a person does not need to possess a protected characteristic in order to bring a complaint of indirect discrimination, it is enough for that person to show that he or she has suffered. a particular disadvantage alongside a disadvantaged group. The case concerned a non-Roma trader who had suffered harm from an electricity company alongside his Roma neighbors in a Roma neighborhood. The complaint was based on the language of the European Race Directive, which shares an almost identical definition of indirect discrimination as that used in the Equal Treatment Directive and the Equal Treatment Framework Directive. Although the Equality Act 2010, which transposes the two directives into UK law, uses a different definition which on its face would prevent this argument from being made by Mr Blackie, because he was an employee of an offshoot state, he was able to rely directly on EU directives to advance this argument.
Unfortunately for Mr. Blackie, the EAT judge identified that raising this new argument at the appeal stage could create an unfair disadvantage for the respondent who did not provide evidence to answer it during the appeal. the initial court hearing. The argument was therefore not allowed. However, the judge admitted that by analogy with the non-Roma trader based in the Roma area, Mr Blackie could argue that he belonged to a group (single parents) who were indirectly discriminated against and that he It did not matter, therefore, that he was a man since he had been discriminated against because of his association with the larger group of single-parent women. So this is an argument that could still be seen being made in a trial court, and there seems to be some chance of success if a case has the right circumstances applicable to it.
If a claim based on this argument were to succeed, it would be a significant step forward for the law in this area. It would also undoubtedly be a significant step forward for equality at work. When men are less protected from discrimination than women when it comes to childcare responsibilities, families will have to make decisions about the role of each parent in the home based on who is most likely to be affected. ” be allowed to work flexibly. This risks retaining outdated gender roles both at home and in the workplace and is bad news for fathers and mothers alike.