The recent case of Fidessa Plc v. Lancaster looked at two key issues relating to an unfair dismissal claim:
- Whether an employer had engaged in indirect sex discrimination during a role re-organisation and failed to design an alternative role to accommodate an employee's existing flexible working arrangements.
- Whether an employee who changed to part-time working on her return from maternity leave and took annual leave immediately afterwards could rely on certain provisions of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR 2000).
Ms Lancaster worked full-time as an engineer in the Connectivity Operations (ConOps) team at Fidessa, a company that develops and supplies software for financial services companies. While on maternity leave between 17 August 2012 and 15 August 2013, she submitted a flexible working request to work part-time upon her return: four days a week from 9am to 5pm. She returned under these working arrangements after a short period of annual leave.
Ms Lancaster made clear to Fidessa that it was important for her to leave at 5pm to collect her daughter from nursery. Although Ms Lancaster was required to do some work on "deletions" after 5pm, it was agreed by her ordinary line manager that Ms Lancaster could do this work remotely from home. Ms Lancaster's line manager went on annual leave in August 2014 and, during this time, the connectivity manager, Mr Tumber, did not allow Ms Lancaster the same flexibility.
In October 2014, Mr Tumber proposed a re-organisation in which the number of roles in the ConOps team was reduced. One of the new roles was a ConOps engineer, who would perform a similar role to that of Ms Lancaster, but with an enhanced requirement to perform work on "deletions" from the office after 5pm. Ms Lancaster did not apply for the role, as she was concerned about the need to work at the office after 5pm as well as about limits on her potential career progression. She was dismissed by reason of redundancy on 25 November 2014.
Ms Lancaster successfully brought a claim of unfair dismissal before the Employment Tribunal. The Tribunal held that Mr Tumber's requirement to work after 5pm constituted indirect sex discrimination and part-time worker detriment.
As part of her claim, Ms Lancaster relied on PTWR 2000. These regulations allow workers switching to part-time work to compare their new terms and conditions with those that they enjoyed immediately before the change to ensure they are treated no less favourably than when on a full-time contract. It also applies to workers who make the change to part-time work following a period of absence, provided this leave is less than 12 months (regulation 4 PTWR 2000).
Fidessa appealed to the Employment Appeal Tribunal (EAT), emphasising that Ms Lancaster's reasons as to why she did not apply for the new role were based on a lack of career progression, not a lack of flexibility, and arguing that she could not rely on regulation 4 PTWR 2000 as she had taken leave of more than 12 months including her annual leave.
The EAT confirmed the Employment Tribunal's decision. Ms Lancaster's desire for flexibility was the predominant reason for not applying for the new role, as was found by the Tribunal at first instance. Furthermore, the taking of annual leave immediately after her maternity leave did not stop Ms Lancaster from relying on regulation 4 PTWR 2000. If it had, it would have the undesirable effect of deterring employees from taking annual leave.
There are two key lessons for employers to take from this case. Firstly, when consulting with employees about new roles during a re-organisation, an employer should take into account any existing flexible working arrangements that have been agreed. Secondly, an employee who takes less than 12 months' maternity leave but then takes annual leave and switches to part-time work on her return must be treated no less favourably as a part-time worker than as a full-time worker.