Access To Childcare As A Human Rights Issue

Written on behalf of Arbesman Hamilton LLP

The challenges of finding daycare for children during the summer months is a popular topic of conversation amongst parents with school-aged children. However, for many people who work jobs with irregular hours, the challenges of arranging daycare persist throughout the year. In a recent hearing before the British Columbia Human Rights Tribunal, the question of whether an employer’s scheduling requirements violated an employee’s human rights against discrimination on the basis of family status.

A schedule change introduces challenges to a single parent

The employee worked for the employer from 2006 until her resignation in 2017. The employee was the sole or primary caregiver to a child, and did not appear to have any support from local family or friends. The employee worked in a call center, which began to use technology to get a better understanding of call volumes at different times of the day. As a result, the employer decided it would require employees to move into “non-fixed” shifts and gave employees one month’s notice of the change.

Prior to the announcement, the employee had arranged for her regular shit to be from 8:00 am until 3:30 pm, allowing her to pick up her child from daycare. The new schedule would require the employee, who was a team lead, to start work at times ranging from 7:30am to 9:30am. The employee stated she would not be able to work a 9:30am-5:00pm shift and still be able to pick her child up from daycare before they closed at 6:00pm.

The employee wrote an email to the employer explaining that it would be difficult, if not impossible, to find daycare that would accommodate her new schedule. The employer asked her to consider different daycares, or finding a friend or family member to help on days when she was required to work late. The employer gave the employee four more weeks to “sort out her childcare arrangements.” The employee called a number of daycares, none of which could provide her with childcare. The daycare she had been using at the time also confirmed they would not be able to stay open past 6:00pm.

On January 17, 2017, the employee emailed the employer and stated she wished to participate in the employer’s voluntary separation program (“the Program”) which allows employees to end their employment and receive a lump sum severance payment. The employer had discretion as to whether or not such separations would be approved.  The employer rejected the employee’s application to participate in the Program, stating they had no obligation to provide her with shifts in a certain time window, and that doing so would demonstrate preferential treatment. The employee resigned on January 31, 2017.

The employee sought to sue the employer on the basis of discrimination, at which time the employer sought to have the case dismissed without a hearing.

The test for discrimination

In British Columbia, an employee alleging discrimination on the basis of family status must show two things:

  1. The employer imposed a change in a term or condition of employment
  2. The change resulted in a serious interreference with a substantial parental or other family duty of obligation.

The test, which came out of a 2004 Court of Appeal for British Columbia decision, has been criticized for having too high a bar, requiring a “serious” interference with a “substantial” parental or other family duty or obligation. However, the tribunal was hesitant to address whether the test was fair. Instead, it ruled the employee could have a chance at meeting the test should the matter go to trial. As such, the tribunal rejected the employer’s motion to have the issue dismissed.

At Arbesman Hamilton LLP we represent both employees and employers in matters of employment law. We can help employers draft contracts and policies that do not violate human rights or contractual obligations. We can also help employees determine if any of their rights have been violated. Please contact us online or call us at 416-481-5604 to talk today.