New rights for old. Flexi‐working and sex discrimination

Pages167-181
Publication Date01 April 2004
DOIhttps://doi.org/10.1108/01425450410511070
AuthorMelanie Fraser
SubjectHR & organizational behaviour
New rights for old
Flexi-working and sex discrimination
Melanie Fraser
Kingston University, London, UK
Keywords Flexible working, Sexual discrimination, Part time workers
Abstract Employees have a statutory right to request a change to their working hours or
conditions to enable them to care for children (so long as they meet certain criteria). The Sex
Discrimination Act 1975 enables workers to claim that a requirement, such as to work on a
full-time basis, is discriminatory. There are no eligibility requirements for this argument although
there is an evidentiary burden. The penalties for breach of the Sex Discrimination Act are greater
than the new right. To what extent do the new Flexible Working Regulations provide a right to a
change in working patterns, and what role remains for the Sex Discrimination Act?
Employees are increasingly interested in flexible working. Employees may
request changes in their working hours or in other practices for many different
reasons, ranging from women returning from maternity leave asking if they
can work part-time to commuters who find it more convenient to work from
home for part of the week. When do employers have to give their request
serious consideration?
Flexibility itself is a contentious term. Employees may demand flexibility to
fit around their own domestic concerns, but when an employer requests
flexibility from his employees, he/she may be referring to evening work,
increases in hours, or a more controversial change such as outsourcing
requiring employees to change to self-employed status.
One model of work is for the employee to complete 48 hours a week, for 48
weeks a year, for 48 years. Defined against this, the majority of women will be
seen as a-typical workers. However, there are numerous other models of work,
including part-time, job sharing, telescoped hours (where the “lunch hour” is
taken at the end of the day), core hours, working from home, and term time only
work. The particular model that appeals to an employee will depend on what
they wish to use the freed time for. The business needs of the employer may
dictate that some models are unfeasible. Yet it is becoming increasingly clear
that an employer who is not willing to consider alternative models of work lays
him/herself open to litigation.
Family-friendly (hence, female) patterns of work may lend themselves to
administrative or independent positions rather than management or team
based roles. Thus, women are concentrated in particular job functions. In
addition, the more senior a worker is, the more likely that he/she will encounter
resistance if they wish to reduce his/her hours in some way. This has a
considerable impact on women in management. Thus, feminists have
The Emerald Research Register for this journal is available at The current issue and full text archive of this journal is available at
www.emeraldinsight.com/researchregister www.emeraldinsight.com/0142-5455.htm
New rights for
old
167
Received March 2003
Revised July 2003
Accepted August 2003
Employee Relations
Vol. 26 No. 2, 2004
pp. 167-181
qEmerald Group Publishing Limited
0142-5455
DOI 10.1108/01425450410511070

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