The Employment Tribunal has held that a requirement for staff to work unrestricted hours, and more than 8 continuous hours each day, indirectly discriminated against two female employees who had returned from maternity leave but were still breastfeeding their babies (Macfarlane and another v easyJet Airline Company Ltd).

Background

Employees making flexible working requests have no right to demand their employer accepts their proposal. Rather, the right is a right to make the request only. Where a flexible working request is refused, an employee is able to bring a Tribunal claim if they can demonstrate that the employer has not dealt with their request properly. However, the remedies available for such claims are limited. The Tribunal cannot order the employer to accept the employee's request (although it can order the employer to reconsider the application) and the maximum compensation it can award is currently capped at £3832.

Of greater concern to an employer is the risk that an indirect sex discrimination claim will flow from the refusal of a flexible working request. Here, the employee would argue that the employer’s ostensibly neutral "provision, criterion or practice" (PCP) puts persons with a particular protected characteristic at a particular disadvantage, and puts the employee themselves at that disadvantage. If the employer cannot justify a discriminatory PCP, then the employee will succeed and can seek uncapped compensation.

A requirement to work long or inflexible hours or rigid shift patterns has previously been held to be a PCP placing women at a disadvantage due to their primary responsibility for childcare. In this case, the Employment Tribunal had to consider whether a requirement to work unrestricted hours, and more than 8 continuous hours each day, was a PCP placing breastfeeding women at a disadvantage, and, if it was, whether it could be justified.

Facts

In this case, the two claimants were employed by easyJet as crew members. Both had periods of maternity leave and returned to work whilst they were still breastfeeding. Both made flexible working requests, seeking an adjustment to easyJet's roster system which required crew members to work in excess of 8 hours per day to meet the flying pattern to which they were assigned.

The claimants asked to work shifts of no more than 8 hours per day so as to allow them the chance to express breast milk (which would not have been possible whilst working). The women also produced certificates from their GPs indicating they were at increased risk of mastitis if they were breastfeeding and not given an opportunity to express breast milk. The GPs advised that the women's shifts should be no more than 8 hours. The airline did not obtain any independent medical advice on the issue. The requests were rejected. It was said that unforeseen delays could mean that the women would have to work more than 8 hours and so the proposed work pattern could not be guaranteed.

Both women went on to have periods of sickness absence and unpaid leave. After their grievances and internal appeals were rejected they also went on to bring claims for indirect sex discrimination. At around the same time, the women were offered ground duties for a six month period only.

Decision

The Employment Tribunal found that the PCP was the requirement for crew members to fly the flying patterns that they were rostered and this could require them work in excess of 8 hours and for as long as required. It accepted that the PCP put women at a particular disadvantage and put the claimants at a disadvantage.

It then fell to easyJet to objectively justify the discriminatory PCP. The airline said the PCP was justified by a number of legitimate aims which principally related to the need to deliver its flying schedule without delays and cancellations. It said that rejecting individual requests to adjust the roster was a proportionate means of achieving those aims. The Tribunal rejected these arguments on the basis that it was speculative: no real life examples of individual adjustments to the roster causing difficulties had been shown. The Tribunal found in favour of the claimants, commenting that that the airline should have offered adjusted flying hours to the women (particularly as there was evidence that bespoke rostering arrangements had been created for other employees in the past).

In addition to awarding compensation, the Tribunal recommended that the sickness absence taken by the women be discounted from any future attendance management or redundancy scoring processes and any enhanced sick pay entitlement used should be discounted when considering future entitlements. Further, the women should be allowed to reclaim any holiday used to cover the absences following the rejecting of the flexible working requests.

Comment 

This decision highlights that the material risk which flows from rejecting a flexible working request is a complaint of indirect sex discrimination, for which compensation is uncapped. Although it is possible to justify indirectly discriminatory practices, this case illustrates how difficult that task can be. Here, the Tribunal rejected the employer's position, which it regarded as little more than speculative assertions. Instead, clear evidence was needed to explain precisely why creating bespoke rosters for the claimants was unacceptable.

In this case, the employer faced unusual practical difficulties in accommodating an employee who wished to express breast milk during their shifts. In more standard working environments, it would be even more difficult for an employer to justify the refusal of flexibility to the working schedule to allow breaks to express breast milk.