In Fidessa Plc v Lancaster UKEAT/0093/16, the EAT considered whether an employee had been unfairly dismissed and subjected to direct and indirect sex discrimination, harassment and part-time worker detriment where she returned from maternity leave on a part-time basis and was subsequently made redundant.

Fidessa Plc (Fidessa) develops and supplies software for financial services companies. Ms Lancaster was employed as an engineer in the connectivity operations team. Her line manager in the team was Ms Nosal, who in turn reported to Mr Tumber, the connectivity manager.

Between 17 August 2012 and 15 August 2013 Ms Lancaster was on maternity leave. Having taken a short period of annual leave, she returned on a part-time basis, working four days a week between 9am and 5pm, although it was agreed there might be some flexibility around those times. Ms Lancaster needed to leave work at 5pm in order to collect her daughter from nursery.

In July 2014, Ms Lancaster was in the early stages of a further pregnancy and needed time off to attend a pregnancy-related medical appointment. At that point, she had only told Ms Nosal that she was pregnant. Ms Nosal needed to clear the time off with Mr Tumber. When he initially refused, Ms Nosal informed him of the real reason for the request and Mr Tumber responded "Oh f**k she's pregnant". Ms Nosal only reported this remark to Ms Lancaster during the subsequent redundancy process.

In August 2014, an issue arose concerning Ms Lancaster's working arrangements. One aspect of her role required her to delete connections, which would free up computer space and improve functionality. This was work that had to be undertaken by the connectivity operations team after 5pm; however, Ms Lancaster had come to an arrangement with Ms Nosal that she could do some of the preparation work for this prior to 5pm and then complete the implementation of the deletion remotely from home. While Ms Nosal was on leave in August 2014, Mr Tumber refused the same flexibility, with the result that Ms Lancaster was required to work after 5pm to a greater extent.

In October 2014, Mr Tumber made proposals to reorganise the connectivity department, which included a plan to reduce the connectivity operations team from three to two members. The two roles would be a conops manager (combining the roles undertaken by Ms Nosal and a third member of the team, Ms Street) and a conops engineer, which would be similar to Ms Lancaster's role but with a greater emphasis on the deletions work. The three members of the team were invited to apply for the conops manager role; following an interview process, Ms Street was successful. Both Ms Lancaster and Ms Nolan declined the opportunity to apply for the new conops engineer role. Ms Lancaster expressed concerns that the work would be focused on deletions, there would be no variety or opportunity for progression and the work would be required to be undertaken after 5pm. There were no other suitable vacancies. Ms Lancaster was dismissed by reason of redundancy on 25 November 2014.

She brought claims for unfair dismissal, indirect and direct sex discrimination, harassment and part-time worker detriment.

Employment tribunal decision

The employment tribunal (ET) upheld the claims and, amongst others, made the following findings:

  • Mr Tumber's reaction on learning about the pregnancy in July 2014 amounted to a detriment when Ms Lancaster was told about it during the redundancy process; that was both an act of direct sex discrimination and harassment related to sex.
  • Reneging on the agreement that Ms Lancaster could leave work at 5pm amounted to less favourable treatment of which her part-time status was the predominant and effective cause.
  • Considering the unfair dismissal claim, the ET did not accept that the restructuring exercise was a sham put up by Mr Tumber to remove Ms Lancaster and Ms Nosal and it found the process adopted by Fidessa open to a reasonable employer in the circumstances. However, the ET did find that Ms Lancaster's dismissal was tainted by direct and indirect sex discrimination and thus rendered unfair. The ET accepted that Fidessa had applied a provision, criterion or practice (PCP) to the new connectivity engineer role that the postholder must perform key tasks of rollouts of deletions after 5pm, which could not ordinarily be performed at home. This put women, and Ms Lancaster, at a disadvantage and there had been no consideration of alternative ways of working; Fidessa had not shown that the PCP was a proportionate means of achieving a legitimate aim.

Fidessa appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal decision

he EAT allowed the appeal in relation to Mr Tumber's remark but otherwise upheld the ET decision.

The EAT accepted that the ET had not made a specific finding on the issue of what the actual, subjective impact was on Ms Lancaster when she was informed of Mr Tumber's remark. While it was acknowledged that the ET might well have thought the point so obvious as to speak for itself, the EAT (albeit reluctantly) concluded that the ET needed to make that finding. The appeal was therefore allowed in respect of the direct sex discrimination and harassment claims and this issue was remitted to the same ET.

Fidessa had challenged the ET's decision on the indirect sex discrimination claim on the basis that it had only made findings in relation to the role from which Ms Lancaster had been made redundant. Fidessa also claimed that the ET had failed to consider the extent of other factors, other than the alleged PCP, that had caused Ms Lancaster not to apply for the new role.

In response, the EAT was satisfied that the ET had found that Ms Lancaster was concerned that the deletions work would have to be done on site after 5pm, a concern not addressed by Fidessa at the time. The EAT concluded that Ms Lancaster would be placed at a disadvantage by the twofold PCP of having to undertake the work after 5pm and doing so at the workplace rather than at home. This disadvantage was 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 ET found that this, along with her concern for career progression more generally, was the issue that caused Ms Lancaster not to apply for the new role. The EAT therefore rejected the appeal against the indirect discrimination finding.

The EAT rejected Fidessa's claim that the ET had made discrete findings of fact about the redundancy process and that these did not identify any discriminatory conduct on Fidessa's part. In short, Fidessa had argued that the ET had not found any purported act of discrimination to be causative of the dismissal and there was no finding that the remark made by Mr Tumber affected Ms Lancaster's selection for redundancy nor her decision not to apply for the new role.

The EAT concluded that if an otherwise suitable alternative role was only rendered unsuitable because of an indirectly discriminatory PCP, it was open to the ET to find that this made the dismissal unfair. The ET had made a finding that the requirement for working beyond 5pm was one of the issues that caused Ms Lancaster not to apply for the new role and the ET was entitled to take this into account when deciding whether her dismissal was fair.

The EAT also decided that, where an employee takes some paid leave at the end of maternity leave and before her return to work, this does not mean the employment relationship is in abeyance during the period of leave for the purposes of interpreting Regulation 4 of the Part Time Workers Regulations 2000 (PTW). Fidessa had sought to argue that Ms Lancaster's previous (full-time) working arrangements were more than 12 months old when her paid leave was included, hence she should not be entitled to the protections under Regulation 4 PTW. The EAT disagreed; it would be artificial to require employees to return to work for one day before taking their annual leave, as this would inevitably discourage employees from taking annual leave.

The EAT concluded that the ET had been entitled to find that subsequently requiring Ms Lancaster to work in a way that was inconsistent with the original agreement (where she could finish work at 5pm) was less favourable treatment of her as a part-time worker, arising because of her part-time worker status.

Comment 

This case provides a reminder to employers that they must take into consideration any existing agreements in place that concern flexible working arrangements when consulting with employees about alternative roles in a redundancy situation. Failure to do so and to incorporate the same agreement and flexibility into the alternative role may amount to a PCP, which if found to be indirectly discriminatory may also impact on the fairness of any redundancy dismissal. This is the position even if the employee does not choose to apply for the alternative role on offer, as was the case here.

In addition, this case provides a reminder that any requirements for employees to work beyond typically 5pm (business hours) and to do so at the workplace rather than at home will be viewed as a two-fold PCP that creates a disadvantage more likely to be suffered by women, given that they as a group are predominantly required to exercise childcare functions and collect children from nursery after work.