The Employment Appeal Tribunal has held that an employee who changed to part-time working on her return from maternity leave and who was subsequently dismissed by reason of redundancy, had been subjected to indirect sex discrimination, part-time worker detriment and had been unfairly dismissed.
The employee, in this case, worked in a team with one colleague and a line manager who reported to a more senior manager.
She had been on maternity leave for just under a year. Prior to her return she submitted a flexible working request and on her return, after taking a short period of annual leave, worked four days a week from 9am to 5pm. While it was agreed there might be some flexibility around those times, the employee needed to leave at 5pm to collect her daughter from nursery.
An issue arose in relation to one aspect of the employee’s working arrangements, in that it was necessary to carry out certain work after 5pm. The employee agreed that this would sometimes require her to stay after 5pm but her line manager agreed that she could do preparatory work before 5pm and complete the work remotely from home. When her line manager was on leave the more senior manager refused the same flexibility with the result that the employee had to work after 5pm to a greater extent.
A reorganisation of the department was proposed which included reducing the size of the team from three to two, meaning that one of the roles was at risk of redundancy. The two roles would be a Manager (combining the roles of the colleague and the line manager) and an Engineer (who would do a role similar to the employee which would involve work being carried out after 5pm). The three members of the team were invited to apply for the manager role. The colleague was successful. The employee did not apply for the engineer role, expressing concerns about the need to work after 5pm as well as a lack of variety and opportunity for progression in the role. There was no other suitable vacancy. The employee was dismissed by reason of redundancy.
She then brought claims, amongst other things, for unfair dismissal, indirect sex discrimination, and part-time worker detriment.
The employer sought to argue that the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 did not apply as the Regulations preclude a comparison with a working arrangement which is more than 12 months old. The tribunal, however, dismissed this argument saying that the fact that the employee took annual leave immediately after her maternity leave did not prevent her from relying on the Regulations.
The tribunal said that reneging on the agreement that the employee could leave work at 5pm was less favourable treatment of which her part-time status was the predominant and effective cause.
The tribunal accepted that the restructuring exercise was not a sham put up to get rid of the employee and that the redundancy process adopted by the employer was one which was reasonably open to a reasonable employer in the circumstances. However, the PCP applied to the new Engineer role, the requirement to perform duties from the office after 5pm, it said, put women, and the employee, at a disadvantage and had not been justified. There had been no proper consideration of alternative ways of working, such as working from home. In those circumstances, the dismissal had been tainted by indirect discrimination and was, therefore, unfair.
Less favourable treatment of part-time workers
The employer appealed. The Employment Appeal Tribunal noted that the employee’s maternity leave had been just less than 12 months but that, as is not uncommon with women returning from maternity leave, she had then taken a period of accrued annual leave. This, it said, did not mean that the Regulations could not apply. It said that the employee did not have to physically return for one day before taking their annual leave and that any suggestion that the employment relationship was in some way in abeyance during the period of paid annual leave was incorrect and would not properly reflect the underlying purpose of the Regulations.
As for the comparison of the terms themselves, the tribunal, it said, had focused on the most important feature: that the employee was entitled to finish work at 5pm subject to some degree of flexibility. The tribunal had been entitled to find that subsequently requiring her to work in a way that was inconsistent with that agreement was less favourable treatment of her as a part-time worker, arising because of her part-time worker status.
Redundancy dismissal and indirect sex discrimination
In relation to the indirect sex discrimination and unfair dismissal claims, the Employment Appeal Tribunal said that the tribunal’s findings were clear regarding the employee’s concern for a 5pm finish, how this had been accommodated in the past and in relation to the new role when it found that the employee would suffer disadvantage by a two-fold PCP of having to undertake work after 5pm and doing so at the workplace rather than at home. It had rightly concluded that this was a disadvantage more likely to be suffered by women given they as a group predominantly have a requirement to exercise childcare functions and collect children from nursery at the end of the working day. The tribunal found that this, as well as her concern for her career progression more generally, was the issue that caused the employee not to apply for the new role.
Case reference: Fidessa Plc v Lancaster