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Flexible working requests and the potential for discrimination

Beware of indirect discrimination when handling flexible working requests warns Jeremy Harvey, Partner and Head of Employment and HR at Coodes Solicitors.

A recent employment tribunal found the budget airline easyJet to be discriminating against
female employees after refusing flexible working requests to allow two female members
of staff to breastfeed. Two of the airline’s crew had requested shifts of under
eight hours to allow them to continue breastfeeding their children after
returning from maternity leave. Their request was based on managing the length
of time between opportunities to express milk. This was supported by letters
from their GPs, which highlighted the medical risks if they were faced with
long periods of not being able to express.


easyJet rejected their requests, arguing that the airline needed staff
to work shifts longer than eight hours to deliver its flying schedule, as well
as avoiding flight delays and cancellations. The claimants were given temporary
ground duties, but as this was not offered immediately they both had periods of
sickness absence and unpaid leave. The tribunal ruled that the staff had been
subject to indirect sex discrimination.


Although they do not have a statutory right to time off, breastfeeding
mothers do have some legal protections, including the right not to suffer
indirect sex discrimination. An employer can justify indirect sex
discrimination if they can prove that their decision was a proportionate means
of achieving a legitimate aim for the business. In this case, EasyJet could
potentially have argued that it was not possible to permit crew staff to only
work shifts of under eight hours, because of their flight schedules, which
cannot be changed.


This case highlights the importance of dealing properly with flexible working
requests and thinking through the potential for indirect discrimination when
making any decision.

For more information on
this or any Employment enquiries contact Jeremy
Harvey, Head of Employment and HR at Coodes Solicitors on 01579 325794 or

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