One of our male staff works on the “support” roster, rather than the main roster which allows him to work the same shifts every week, rather than having to work varied shift patterns on the main roster which is 24/7. He does this because of having a disabled child and needs to plan/share the childcare. His manager has been reviewing rosters and told him he had a “very poor excuse” for being on the support roster and that he should be removed from it. He also said he could understand it if he were the mother but he was ‘the breadwinner and his wife only had a part time job’. In fairness he is reviewing all the people who enjoy this benefit.
Your manager is articulating some very stereotypical outdated views of women and men in employment and as such opens you up to not only a constructive dismissal claim but also one for sex discrimination. The majority of claimants about sex discrimination are from women but the law is evenly balanced and there have been a significant number of high profile claims from men. There is also a slight risk of claim for associated disability discrimination. You are entitled to review employees’ non-statutory flexible working arrangements but you should use objective and transparent criteria if removing this benefit from some employees, but not others. The use of such justifiable criteria in flexible working applications is likely to become even more important when the statutory right to request flexible working is extended to all employees in the future.
At the moment your risk of losing a Tribunal claim is high, so it would be best to say that he has reconsidered his decision rather than wait for the grievance/appeal/claim. If notwithstanding that decision you still receive a grievance from the employee then you will need to hear it properly and take some appropriate action against the manager.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for proper advice.
