How discrimination laws work for dads

The last decade has seen a huge shift in the way we work, with increasingly more men taking on childcare responsibilities and looking to work more flexibly.

Research in 2017 by Working Families revealed that 40% of fathers want to play a more active role in bringing up their children, while one in five want to share childcare responsibilities more equally with their partner. Yet it also found that 36% of dads feel their current working arrangements don’t support them in meeting childcare responsibilities.

To attract and retain both working fathers and mothers, it’s important for employers to acknowledge this shift in working practices and ensure they’re up-to-date on how current discrimination laws work for dads.

“Whilst the current legal framework is compatible with equal rights for parents, it is employers’ mindset and knowledge of the law that needs to adapt to be more tolerant and open to flexible working requests from fathers, acknowledging that childcare commitments are often shared,” remarks Tracey Guest, partner at Slater Heelis Solicitors.

Sex Discrimination

Although cases are rare, dads can claim direct sex discrimination if they can show they were treated less favourably because they are a man.

“Such a claim would only arise where, for example, an employer takes a view that flexible working requests from women only will be considered,” explains Guest. “In these circumstances, a man whose request for flexible working to care for a child is turned down would be entitled to bring a direct discrimination claim, based on the protected characteristic of sex, on the basis that women in the organisation are being given more flexibility than they are.”

However, if a father’s request for flexible working is turned down, men can’t claim indirect sex discrimination, because statistically women are more likely to have primary responsibility for childcare, so practices of refusing flexible working affect more women than men.

“When employers impose inflexible hours or do not allow flexible working, it puts women at a significant disadvantage, so in these circumstances, the indirect sex discrimination argument is available to women but not men,” says Elena Cornaro, rights adviser at Working Families.

Yet employers must tread carefully in situations where there are competing flexible working requests, warns Guest. “Employers should be particularly mindful not to discriminate against employees on the grounds of sex by prioritising mothers, for example, without being able to objectively justify the discriminatory treatment.  An employer should consider each case on the merits, looking at the business case and the possible impact of refusing a request.”

Improve Flexible Working Legislation

Louise Taft, employment solicitor at Freemans Solicitors, questions whether flexible working and parental leave rights are generally fit for purpose. “Women only have to rely on indirect sex discrimination claims to give ‘teeth’ to flexible working claims because the flexible working legislation is itself so toothless. Ironically, as more men work flexibly – whether for childcare reasons or not – this will make these claims harder. In my view, we need to improve flexible working legislation to help mums and dads.”

Cornaro believes some assumptions behind parental leave legislation need to change. “Dads are currently only entitled to two weeks’ paternity leave. They can also take shared parental leave (SPL), but only if they meet earnings and service conditions. However, mums are entitled to one year of maternity leave from day one of employment, regardless of how much they earn. This represents a mismatch between wanting to achieve equal parenting on one hand, and outdated legal assumptions surrounding parenting on the other.”

The introduction of SPL in April 2015 signalled a move to more equal parenting, but take-up of this has been low, with figures from the CIPD showing that just 5% of new fathers have opted for SPL since its introduction. This could be down to the lack of financial incentive to take the leave and the complexity of the application process, the CIPD said.

Taft believes that SPL was and is a great idea, but was implemented badly. “It’s far too complicated, particularly where one or both partners don’t have a ‘typical’ employee relationship, or where dad moves employment between conception and wanting to take leave.”

So what can employers do to become more father-friendly?

“A really savvy employer may consider enhancing SPL pay to match that of maternity pay, to ensure families aren’t at a financial disadvantage if the mother returns to work after the birth of a child, rather than the father,” remarks Guest.

Taft adds: “Have conversations about SPL with expectant fathers – lead that conversation with an assumption they want to take it rather than waiting to hear from them. And treat flexible working applications seriously from everyone – mums and dads.”

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