UK: Shifting Shift Patterns

The recent case of Chief Constable of Avon & Somerset Constabulary v Ms Chew which was determined by the Employment Appeal Tribunal may have a significant impact upon female employees’ working shift patterns where they have the primary responsibility for child care.

The case concerned the force’s policy for part time working. The policy stated that where an officer wished to apply for part time working, the applicant must accord to the "cycle of duty allocated on the shift pattern which has been adopted by the district or department in which the officer is serving." There was no dispute before the Employment Tribunal that the force’s overwhelming obligation is to provide adequate police cover 24 hours a day and that a rotating shift system best met this obligation. The issue was whether there should be a requirement that all officers should comply with this system.

Ms Chew was a single mother dependent upon professional childcare. The Tribunal accepted that nursery schools are only open weekdays and then only during daytime hours. As a result, she was unable to comply with the normal rotating shift pattern of the force which meant she would be required to work on different days, nights and weekends. Her applications for part time working were turned down because of this. The Employment Appeal Tribunal upheld the Employment Tribunal’s decision that by making this requirement mandatory, the force was guilty of indirect sex discrimination as the number of women who could comply with the requirement to work a rotating shift pattern was considerably smaller than the number of men who could comply. Interestingly, although 99.96% of men could comply and 97.70% of women could comply, this difference of 2.26% was found to be "considerably smaller".

The impact of this decision for employees is that employers, and police forces in particular, who have rotating shift patterns must ensure that single mothers or women who are the primary carers for their children are given the flexibility to work hours which suit their child care arrangements. The employer cannot impose on them a requirement or condition to work such shift patterns unless it is justifiable irrespective of sex.

As a result of this decision employers may be tempted not to employ women to do shift work. Such a decision is likely to amount to direct discrimination because they are treating women less favourably by not giving them the opportunity to undertake shift work.

The answer for employers is to adopt a flexible family friendly approach to requests by shift pattern employees to work hours that suit child care arrangements. The Tribunal in Chew made the point that if the requirement was removed the force would be under no obligation to accept all applications for typical hours, and would be free to reject an application for flexible working where it would have a damaging operational effect. In addition, whilst there is no statutory right for an employee to work part time, part time workers must not be treated less favourably than full time workers.

The Employment Bill which is currently before Parliament contains a proposal that employees can make a written request for flexible working to their employers. The employer must then make a practical business assessment on how the flexible working can be arranged. If the request is turned down then the employee will be given an internal right of appeal and ultimately will be able to refer the matter to an Employment Tribunal for determination.

Therefore, it seems that the decision in Chew has a potentially wide-ranging effect on working patterns for single parents and women who are the primary carers for their children. Even if this case proves to be a false dawn for single parents, the Employment Bill will introduce legislation to give employees a better work-life balance.