Fidessa Plc v Lancaster UKEAT/0093/16
Sex discrimination claims may be either direct discrimination (where one person (A) treats another (B) less favourably than they treat or would treat others because of sex), or indirect discrimination where:
- that applies to people not of the same sex as B
- but the PCP puts or would put persons of B’s sex at a particular advantage
- and puts or would put B at that disadvantage
A part-time worker has the right not be treated less favourably than their employer treats a comparable full-time worker as the result of any act (or deliberate failure to act) by their employer, where that treatment is on the ground of the worker’s part-time status and cannot be objectively justified. Although, usually, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations require a real comparator rather than a hypothetical one, a worker who was previously full-time can compare their new terms and conditions against their old ones. Similarly, a worker who switches to part-time work after a period of absence (such as maternity leave) can compare themselves against their old position as long as they have returned to the same job (or one at the same level) and the break was less than 12 months.
The Claimant was employed by the Respondent as an engineer in a team of three (including her line manager, Ms Nosal) known as ConOps. Ms Nosal reported to the Connectivity Manager, Mr Tumber.
The Claimant took just under 12 months of maternity leave from August 2012. Whilst on leave, she made a successful request to work flexibly – working four days per week, 9am until 5pm with some flexibility around those times when necessary. When she returned to work after a short period of annual leave, the Claimant’s child care arrangements meant that she had to leave at 5pm each day.
In July 2014, the Claimant told Ms Nosal that she was in the early stages of pregnancy and needed time off for a medical appointment. When Mr Tumber learned this, his response was, “Oh ****, she’s pregnant.” Perhaps unsurprisingly, Ms Nosal did not tell the Claimant this at the time.
The Claimant and Ms Nosal agreed that she would sometimes stay after 5pm to do a particular task which could not be done at other times, and she might also log on from home in the evening to complete this task. However, Mr Tumber did not allow the same flexibility when Ms Nosal was on holiday, so the Claimant was more frequently unable to leave at 5pm.
In October 2014, Mr Tumber proposed a reorganisation of his department which would reduce the ConOps team from three to two: a ConOps Manager and a ConOps Engineer. The engineer role was similar to the Claimant’s existing role, but would require more work after 5pm. The Claimant applied unsuccessfully for the manager role but did not apply for the engineer role partly because of the need to work after 5pm but also citing the lack of variety and opportunity for progression. There were no other suitable vacancies and the Claimant was made redundant in November. In the course of the redundancy process, she learned of Mr Tumber’s comment in July 2014.
The Employment Tribunal upheld her claims for unfair dismissal, indirect and direct sex discrimination, harassment and part-time worker detriment.
The EAT broadly agreed with the Tribunal, although it accepted the Tribunal had failed to make findings about the actual impact of Mr Tumber’s remark on the Claimant when she was told of it, and this ground relating to direct sex discrimination and harassment would be remitted to the same tribunal to make those findings of fact.
The EAT held the Tribunal was entitled to find that the Claimant would suffer disadvantage by having to work after 5pm and having to do so from the office rather than at home. This was a disadvantage more likely to be suffered by women (who, the Tribunal found, are more likely to be responsible for childcare and to collect children at the end of the day). This – and concern for her career progression – was the reason for the Claimant’s decision not to apply for the ConOps Engineer role.
The Respondent argued that the Tribunal had not found any discriminatory conduct during the redundancy process, and if the problem was that the alternative role was unsuitable because of the PCP as to time and place of work, then the dismissal should be unfair, not an act of discrimination. The EAT disagreed, saying that the tribunal’s finding that the Claimant’s decision was partly based on her concerns about working after 5pm was sufficient. Mr Tumber had not considered alternative ways of working and so the Claimant’s redundancy was unfair as tainted by discrimination.
The EAT did not accept the Respondent’s argument that her working arrangements were more than 12 months old. Her maternity leave had been just short of 12 months and her period of annual leave did not break the connection. She did not have to physically return to work between her maternity leave and her annual leave, since the employment relationship is in full effect during annual leave. The most important point was that the tribunal was entitled to find that requiring the Claimant to work in a way inconsistent with the agreement that she worked until 5pm, with some flexibility, was less favourable treatment of her as a part-time worker.
What to take away?
Employers beware – a requirement to undertake work after the end of usual working hours, and to be required to do so in the office or workplace, is a two-fold PCP. As women are predominantly more likely to be the parent responsible for child care and out of the home child care arrangements (such as collecting children from nursery), the PCP creates a disadvantage more likely to be suffered by women.
It didn’t matter that the Claimant did not apply for the new engineer role – the Respondent’s failure to design a new role to take account of her existing flexibility may amount to a PCP which is indirectly discriminatory.
Finally, when considering whether a period of absence is less than 12 months for the purposes of the Part-Time Worker Regulations, the fact that a worker takes a period of annual leave immediately on their return does not adversely affect the comparator.