A ruling of the Scottish EAT has reopened the question of whether a woman who chooses to work part-time because she wishes to care for her children, but who could in practice make childcare arrangements to enable her to work full-time, will be able to bring an indirect sex discrimination claim.
Such claims used to require the employee to show they could not comply with a requirement. Following a legislative change in 2005, an employee now need only show a disadvantage, which is commonly thought to be something less than inability to comply (this was the obiter view of Elias P in Eweida v BA, EAT). Tribunals have often tended to take as read that a full-time requirement disadvantages women and focussed on whether the requirement can be justified.
In this case the EAT stated it would be "difficult to see that it would be correct to talk in terms of" an employee who chooses, but is not obliged, to work part-time being disadvantaged. Unless tribunals find a way round this "difficulty", such employees may no longer be able to bring indirect sex discrimination claims.
The case was remitted to the tribunal to consider whether, in the pool of employees who wished to work flexibly, there was a disadvantage to the claimant and whether it was one liable to be experienced by women as opposed to men. (Hacking & Paterson v Wilson, EAT)