Is it discriminatory to expect an employee to work full office hours despite his family commitments? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills and Reeve, offer legal advice.

The question:
I have a colleague who feels that he is being discriminated against as he is the only one in his department who has a family and whilst his role has an element of autonomy around it, i.e. he sets his own appointment, travels to locations etc it has been noted that whilst he delivers against his target, he should be in the offices (where his appointments are) from 8am till 8pm even though his contract states that 8:30am-5:30 are the standard working hours; but he has no fixed office address and so has to travel around. He says that it is unreasonable to ask this, even when he get home he continues to work quite often up to these hours. Does anyone think that he has a case for discrimination?

Philip Bould

Legal advice:

Esther Smith, partner, Thomas Eggar

There is not actually any statutory protection for employees on the basis that they have a family, unless it falls within the sex discrimination remit. As your colleague is male it will be pretty hard for him to argue that his family responsibilities make it harder for him to comply with a condition that he works particular hours, as the current statistics show that more women than men have child care responsibilities, so the condition does not place him as a man at a disadvantage.

He would also struggle to say that he is suffering discrimination on the grounds of his marital status, which is protected under the Sex Discrimination Act, as again the fact that he has children is not necessarily linked to the fact he is married, with lots of non married people having children, and lots of married people not having children.

He does have certain statutory rights to take time off to care for his children in particular circumstances, and subject to certain criteria being met, but it does not sound as if that is the situation here.

On a general level, it does not seem reasonable for the employer to impose a condition on any employee to be in the office from 8am to 8pm particularly where their contract provides for other working hours. The 12-hour day would in itself contravene the Working Time Regulations 1998, which regulate working time and rest periods. If the employee in question is picked up by his employer as a result of the hours he is or is not working, I suggest that the employee confirms that he will work in accordance with the terms of his contract and within the scope of the Working Time Regulations and if the employer seeks to take any action as a result of this the employee should raise a grievance.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

Philip, I must confess that I just don’t see the aspect of this that falls within the anti-discrimination arena. There are of course laws against discriminating on the grounds of race, religion, disability and so on. None of these seem relevant. Sex discrimination is often a possible line of attack where, for example, child care issues are concerned but that doesn’t, of itself, seem to be an issue here. What does seem to be at issue is the employee’s work-life balance and a seemingly unreasonable employer.

I have considered whether this could be a case of discrimination on the grounds of marital status/civil partnership. The Sex Discrimination Act 1975 says that it is unlawful for an employer to discriminate against a person who is married or in a civil partnership by treating that person less favourably for that reason, or by applying a provision, criterion or practice which the puts married people or those in civil partnerships at a disadvantage when compared with people who don’t have that status, and that the particular person concerned is actually disadvantaged and where the employer cannot justify the offending provision, criterion or practice.

However, whether this applies needs careful scrutiny and, in any event, you do not say that this individual is married or in a formal civil partnership, merely that they have a family. However, this at least has some potential.

On balance therefore this doesn’t look like a discrimination issue but a case of an employer making unreasonable demands on an employee and, of course, the employee does have the right to complain about this so all is not lost.

Martin can be contacted at: martin.brewer@mills-reeve.com

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