Over the past few weeks, I had cause to consider the state of family friendly rights in the UK: how we got where we are, where we are now and what might happen in the future. It has got me thinking.
First, I met with a very senior female executive to provide advice on her current employment situation. She was extremely impressive, a very high earner and just a really lovely person to work with; I could see why she excelled in her professional life. She didn't come to seek advice in relation to family friendly rights or potential discrimination – in fact it was advice in very positive circumstances (people don't just need employment lawyers in a crisis!). But as we discussed working life, as working mums do sometimes, we strayed onto the work/life balance issue. It was clear from her description that she had been treated less favourably because of her family life, probably more by accident than design, but in a way that had a significant impact on her finances. It sounded like the men she worked with did not suffer in the same way.
Next, we were asked by a client to provide a brief summary fact sheet of family friendly rights in the UK. It was instructive to put the law as it stands all in one place (and really tricky to get on two sides of A4 in an attractive format). At around the same time I was preparing a paper for an international legal conference I am attending this weekend in Budapest. The aim of my session is to compare and contrast various legal jurisdictions around the world in their approach to flexible working. In preparation, I have read the other papers from around the world and at the same time I have traced the history of the UK rights to the current law I had packed into my fact sheet (this came to much more than two sides of A4).
Finally, I have been advising a client on a spate of shared parental leave requests from fathers. This has been fascinating as it was in some cases hard to discern whether the requests have been made in the grip of enthusiasm for newly acquired childcare rights for fathers or because at this organisation the shared parental leave can give a professional advantage to the employee. The organisation's approach has been refreshing as there is a real desire, whatever the reason behind the request, to ensure that fathers feel able to take on the joy/burden (delete as appropriate) of childcare without fear or favour.
What did this get me thinking? Well, two contradictory things. On the one hand, no matter what your privilege and status, women's careers still seem to be affected by their childcare responsibilities and it isn't always obvious when it is happening. So it probably is fair that women have the ability to bring claims for indirect sex discrimination claims when their flexible working requests are unreasonably refused (which, according to a recent study, happens often; apparently 26% of women had flexible working requests denied and 12% felt their employer failed to consider their requests properly). The basis for this argument is that the courts recognise that women tend to bear the burden/joy (as above) of childcare which means that requirements to work in a particular way can have a disproportionate effect on them. On the other hand, my international paper shows that we have come a long way in employment law in the UK and there are many family friendly rights, the majority of which my fact sheet proves are available in some form to men too. So maybe the additional indirect discrimination protection for women is not fair after all?
If my client with shared parental leave requests from men is the start of a new wave then Courts may eventually have to accept that women workers do not carry out the majority of childcare and so refusing flexible working requests will not be indirectly discriminatory. This would mean that we have achieved true equality in the workplace – but it would have the perverse outcome that it will be easier to refuse requests from men and women. Employers would simply be able to argue they would have treated a male worker with childcare responsibilities in the same way and, as men and women have equal responsibilities, there is no disproportionate effect on either gender. However unlikely this may seem now, legislation often does lead public opinion (see age discrimination legislation as a recent example).
I am sure there is some time to go until this happens and who knows where Brexit may take us in the meantime... (although if you want to have an idea, here is a link to David Hunt's article last week. It is certainly food for thought and discussion in Budapest.