The employer in Fidessa PLC v Lancaster supplied software to financial services companies and there were specific tasks that had to be done after the end of trading. On her return from maternity leave, the claimant agreed with her employer that she could do the preparatory work before 5pm, then leave work to collect her daughter from nursery, and finish off the tasks remotely from home. However, when her normal manager was on annual leave, another manager (who had sworn when he found out that the claimant was pregnant for a second time) reneged on the arrangement. The claimant was subsequently made redundant, and although she could have applied for another position, this would have required her to work in the office after 5pm, which she could not do because of her child care arrangements. She brought complaints of direct and indirect sex discrimination and less favourable treatment because of her part-time status.
The EAT upheld the tribunal's finding of indirect sex discrimination and unfair dismissal and the complaint of part-time worker discrimination. The tribunal found that the requirement to work on site after 5pm put the claimant at a disadvantage and that women as a group were more likely to have to collect children from nursery at the end of the day. The fact that the claimant was also concerned about career progression in the new role did not take away from the tribunal's clear finding that it was the PCP of working after 5pm in the office that caused the claimant not to apply for it. As such, her dismissal was unfair and tainted by indirect sex discrimination. (The EAT overturned the tribunal's finding of direct sex discrimination on a technicality and returned the claim to the tribunal for further consideration.)
One other point of interest in the case was the claimant's reliance on her previous full-time position as a comparator in her part-time discrimination claim. In contrast with other types of discrimination, part-time discrimination claimants have to point to an actual, not just a hypothetical comparator. However, if a worker returns to work from maternity leave within 12 months on a part-time basis, she can use her previous full-time position as the comparator. The claimant had returned to work a few days before the end of the 12 month period but had then taken accrued annual leave. The EAT rejected the employer's contention that she had failed to return within the 12 month period – returning from maternity leave was returning to work, even if the worker immediately took annual leave.