Some employment terms relating to working hours have the potential to be challenged on the grounds that they are unlawfully discriminatory.
An example of potential unlawful sex discrimination is a term in a woman's contract giving her employer power to require her to work overtime without advance notice. Fewer women than men are able to comply with a term of this type, because more women than men have family and childcare responsibilities that limit their flexibility. If this particular employee cannot comply with the term, it amounts to unlawful indirect sex discrimination against her, unless her employer can show a clear business need for it.
An employer may find it difficult to justify a requirement that an employee must be prepared to work overtime without notice, if there is evidence that, by efficient management planning of its staffing needs, the employer could have avoided the need for any overtime working or at least have given the employee advance notice.
Certain requirements and conditions relating to working time could also be challenged as indirect race discrimination. Assume, for example, that an employee of Asian ethnic origin asks for two days' holiday to observe an important religious festival. The employer refuses the request, because it has a policy that no holidays can be taken in that particular month. Assume that this policy adversely affects a larger proportion of those in the workforce who are of Asian ethnic origin than those who are not of Asian ethnic origin. It therefore amounts to indirect race discrimination unless it can be objectively justified. The employer therefore needs to demonstrate that it has a business need to maintain staffing levels during that month, and that that need could not be met by other means, such as by requiring workers who take time off to make up the lost time over the following week.
Most religions have festival days that followers are expected to observe. The Advisory, Conciliation and Arbitration Service (ACAS) has produced guidance on the religious discrimination legislation that includes details of the festivals of the most widely followed religions ( Equal opportunities links ). Companies should try to accommodate employees' requests to take their holiday entitlement at these times, where this is compatible with business needs, both as a matter of good practice and in order to avoid indirect religious discrimination. Likewise, it would be advisable for employers, where practicable, to accommodate employes' requests for time off during ther working day for religious observance, perhaps by allowing employees to take their rest breaks at a different time. Companies who would like further advice on accommodating their employees' religious beliefs may wish to consult their Association or the ACAS guidance.
Disability discrimination law can also affect the organisation of working time. Employers have a duty under the Disability Discrimination Act 1995 to consider whether there are any reasonable adjustments that they might make to accommodate disabled job applicants or employees (duty to make adjustments ). The possible adjustments listed in the legislation include altering a person's working hours. For example, if an employee with impaired mobility finds it difficult to use public transport during the rush hour, it may be reasonable for a company to consider altering the employee's normal working hours to allow him or her to travel outside peak times. Likewise, employees with certain impairments may find night work difficult, so their employers may need to consider whether it would be reasonable to transfer them to day work.
Under the Regulations on part-time and fixed-term work, employers must ensure that they do not treat part-time workers any less favourably than full-time workers, or fixed-term employees any less favourably than permanent employees, unless they can objectively justify doing so. (The Regulations are explained in more detail in (fixed-term contracts) and (part-time working).) This principle applies to terms and conditions relating to working time, including, for example, access to flexible working arrangements and holiday entitlement.