In Macdonald v Computershare Technology Services (UK) Ltd the employer did not discriminate against an employee when it refused a flexible working request that would have allowed the employee to provide care to their disabled children.
Facts
The claimant works for the respondent in a demanding incident manager role. The claimant requested permanent homeworking to help their wife, who is the children’s primary caregiver, care for their neurodivergent twins. The employer refused, citing a detrimental impact on quality.
Following this, the office attendance requirement was increased to three days a week. In the claimant’s team, this operated as a requirement to be in the office for nine days a month due to a shift pattern with early starts. The claimant later submitted a second flexible working application, again asking for permanent home working due to their caregiving responsibilities for their neurodiverse twins. Again, the request was refused, as was a subsequent appeal.
Later, the claimant received a first written warning for breach of the office attendance mandate. The claimant had not attended the office for the required nine days per month.
The claimant brought several discrimination claims, including indirect sex discrimination and associative disability discrimination.
Employment Tribunal (ET) in Scotland
The ET first considered the direct associative disability discrimination claim. The claimant relied on the decision to refuse the flexible working request to work from home permanently as the discriminatory act. They relied on a hypothetical comparator who was in the same job, who submitted a flexible working request which sought permanent working from home, but who did not have disabled children.
In support of their claim that the refusal was because of their children’s disability, the claimant referenced that during the flexible working meeting, there was a great deal of focus and discussion on the twins and that a hypothetical comparator would not be questioned in the same manner. However, this was rejected. The ET said that “something more” was needed for the burden of proof to shift to the employer to prove that the decision was not discriminatory, i.e. evidence from which it could draw an inference that the protected characteristic of associative disability was the reason for the difference in treatment.
Turning to the question of indirect sex discrimination, the ET accepted that there was a childcare disparity and that women bear the greater burden of childcare obligations than men. The ET concluded that it could take judicial notice of the fact that unexpected child sickness may make it difficult for women with primary childcare obligations to attend the office for a requisite number of days per month. Accordingly, it concluded that it could take judicial notice of the group disadvantage relied on that women generally have more difficulty in attending the office for a certain number of days per week/month due to primary childcare obligations and the consequential problems that causes, such as being at risk of dismissal. However, because the claimant was not able to show that they had the same primary caregiver responsibilities, they were not put at substantively the same disadvantage as the group disadvantage to women. The claim therefore failed.
Finally, the ET considered the claim for indirect disability discrimination. The claimant relied upon three groups of disabled employees, namely:
employees who are confined to wheelchairs
employees who suffer from total blindness
employees who suffer the same disability as the claimant’s two children (understood to be ADHD and/or autism).
These groups, the claimant argued, would have difficulty adhering to a requirement to be physically present in the respondent’s place of business for a certain number of days per week/nine days a month and thus would be at risk of dismissal. However, this was rejected by the ET as the claimant was not able to show any evidence of why these groups in particular would be disadvantaged.
Overall, all the claims failed.
