In a decision dated 16 December 2008, the Employment and Discrimination Tribunal (EDT) has rejected claims of direct and indirect sex discrimination against Flybe Limited (F) but upheld a complaint of unfair dismissal against the Company on the grounds of “a technical breach by F of a fair process of such standing that their behaviour cannot be judged as fair and reasonable within a reasonable range of responses”.

Facts

Captain Burford (B) was employed by F as a pilot. She commenced maternity leave in May 2005. Her return to work date was postponed at her request on three occasions: on the first two occasions on the basis of an unpaid extension of maternity leave; on the third occasion on the basis of an agreed Maternity Career Break (MCB) with a return to work date of 1 December 2007. The MCB was an exceptional arrangement agreed with B, recognising her particular circumstances and departing from F’s normal practice by preserving B’s seniority and bidding rights during her prolonged absence.

In the event, because B was required to undertake a refresher course in the UK before returning to flying duties, her return to work was further deferred until the start date of the course (being 7 January 2008). In anticipation of starting the course, B put in place childcare arrangements and arranged for her husband to take his annual leave to assist her with looking after their child. However, following illness over the New Year period, B was removed from the training course and given the alternative options of joining the course late, or taking the next available course in February. B declined both options due to childcare difficulties.

B repeated a request (originally made by telephone during her illness) for a 12 month extension of her MCB. F refused this request but told B that she could instead apply for a Standard Career Break, which would have resulted in her loosing her seniority and bidding rights. F set a deadline for a response of 14 February 2008, which passed. In the absence of a response, F deemed B to have resigned but failed to communicate this to B or to follow any termination process.

Decision

The EDT held that:

  1. There was no direct sex discrimination as none of the law pertaining to pregnancy and the potential for automatically unfair dismissals applied to B’s claims.
  2. There was no indirect sex discrimination. In making this finding, the EDT accepted that a greater proportion of women have proportionally more problems with childcare than male colleagues; however, it went on to hold that there was a limit of reasonableness as to how an employer should counter-balance this.
  3. B was unfairly dismissed due to “a technical breach by F of a fair process of such standing that the Company’s behaviour cannot be judged as fair and reasonable within a reasonable range of responses”. In particular, the EDT drew attention to the resources and size of F, ruling that the matter should have been handled with a great deal more expertise than was demonstrated, particularly by the HR Management.
  4. The unfair dismissal award was reduced by 80% due to B’s obduracy in rejecting alternatives, which the EDT found amounted to “a most significant contribution to the ending of the employment”.

Comment:

This is the second sex discrimination claim to be heard by the EDT in Guernsey, and the second claim to have been rejected. However, the EDT’s approach in this case raises some concerns.

In relation to the direct sex discrimination claim, the EDT was required to consider whether, on the grounds of her sex, B was treated less favourably by F than a man would have been treated. This required consideration of a comparator (actual or hypothetical) unless the alleged discrimination took place during a “protected period” of pregnancy and maternity leave. The EDT rejected the direct sex discrimination claim on the basis that none of the law pertaining to pregnancy applied (presumably on the basis that B was well beyond the protected period). However, there is no indication from the judgment that the EDT went on to consider direct sex discrimination outside the protected period by identifying a male comparator (actual or hypothetical) and comparing B’s treatment with how the comparator was (or would have) been treated. For these purposes, we suggest the appropriate comparator would have been a male Captain returning to work after a prolonged absence of over 2½ years in circumstances where:

  1. throughout the period of absence (by special agreement) his seniority and bidding rights had been preserved;
  2. there was a requirement for him to undertake a refresher flying course before his return;
  3. he declined the options of either returning to a course from which he had been withdrawn or joining the next available course the following month; and
  4. he did not take up the option to request a standard career break but instead requested a further 12 month career break on the specially agreed terms.

In relation to the indirect sex discrimination claim, this required the EDT to consider whether F had applied a provision, criterion or practice (PCP) to B which it would have applied equally to a man but which:

  • was to the detriment of a considerably larger proportion of women than of meM
  • could not be justified
  • was to B’s detriment.

The PCP identified by the EDT was the requirement to attend the refresher flying course. The EDT went on to find that this requirement was to the detriment of a considerably larger proportion of women than men on the basis that a greater proportion of women will have proportionally more problems with childcare provisions than male colleagues (and so could impact on women’s ability generally to attend the course). At this point the EDT concluded that there was no indirect sex discrimination as “there is a limit of reasonableness as to how an employer should act to counterbalance this”.

This conclusion appears to ignore a body of existing authority on how an employer might objectively justify a potentially discriminatory PCP.

In considering justification, the accepted approach is derived from EC law. The European Court of Justice held in Bilka Kaufhaus GmbH, Weber von Hartz [1986] IRLR 317 that the measure taken by the employer:

  • must correspond to a real need on the part of the employer;
  • must be appropriate with a view to achieving the objectives pursued;
  • must be necessary to that end.

Whilst, on an application of these measures, the EDT may well have reached the same conclusion that there was no indirect sex discrimination, our concern lies in the fact that the EDT appeared to disregard these principles and to substitute instead a “reasonableness” test. It is established law that the test of justification in indirect sex discrimination is not the same as raising a defence in an unfair dismissal claim, where an employer is permitted to act within a “range of reasonable responses” (Hardys & Hanson Plc v Lax [2005] IRLR 726). The test in indirect sex discrimination cases is as outlined above and requires the EDT to consider whether the PCP was a proportionate means of achieving a legitimate aim.