In Fidessa Plc v Lancaster (2016), the Employment Appeal Tribunal (EAT) considered whether an employee who returned to work following maternity leave on a reduced hour part-time basis and was then made redundant had been discriminated against and unfairly dismissed.
Ms Lancaster was a full time employee of Fidessa Plc. On her return from maternity leave she submitted a flexible working request and began working on a reduced part-time basis: four days a week 9am - 5pm. It was agreed there would be some flexibility around those times as Ms Lancaster normally needed to leave at 5pm to collect her daughter from nursery.
After a year of working to this agreement, the company changed its IT procedures requiring some work to be carried out after 5pm. As a result Ms Lancaster had to work beyond 5pm to a greater extent so she submitted a request to carry out the extra IT work from home which was refused.
The company then restructured Ms Lancaster’s department and she applied for one role in the new structure but was unsuccessful. She declined to apply for the role of ConOps Engineer which was similar to her previous role because it required some IT work after 5pm. There were no other suitable alternative roles and Ms Lancaster was dismissed by reason of redundancy.
Ms Lancaster brought claims for unfair dismissal and indirect gender discrimination.
In a claim for unfair dismissal, once the employer has shown the reason for dismissing an employee (in the case of Ms Lancaster the reason was redundancy), the employment tribunal must decide whether the dismissal for that reason is fair. If the dismissal is tainted by discrimination then the ultimate dismissal will be unfair.
Indirect sex discrimination occurs where:
- An employer applies a provision, criterion or practice (PCP) to an employee–in Ms Lancaster’s case this was the requirement in the new ConOps Engineer role to work after 5pm.
- The employer applies, or would apply, that PCP to persons not of the same sex as the employee – the requirement to work beyond 5pm in the ConOps Enginer role also applied to male employees.
- The PCP puts or would put persons of the employee's sex at a particular disadvantage. Women are more likely to have child care commitments; the requirement for ConOps Engineers to work beyond 5pm therefore puts them at a disadvantage as they are less likely than male employees to be able to comply.
- The PCP puts or would put the employee at that disadvantage - Ms Lancaster did have childcare commitments so the requirement to work beyond 5pm did put her at the particular disadvantage mentioned above.
- The employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
The Employment Tribunal (ET) found that Ms Lancaster’s dismissal was unfair and that she had suffered indirect sex discrimination. Fidessa plc appealed against the decision.
“The EAT rejected Fidessa’s appeal and found that Ms Lancaster would suffer disadvantage in the new role of ConOps Engineer by a two-fold PCP of having to undertake work after 5pm and doing so at the workplace rather than at home.”
It concluded that this was a disadvantage more likely to be suffered by women given they predominantly perform childcare functions and collect children from nursery at the end of the working day. Fidessa were unable to justify the requirement as a proportionate means of achieving a legitimate aim. The requirement to work beyond 5pm from the workplace had been the reason Ms Lancaster had not applied for the role of ConOps Engineer and that this made the dismissal unfair.
Fraser Auld an Associate in our Employment team comments:
“A requirement to undertake work after 5pm (the end of working hours) and to do so at the workplace rather than at home is a common scenario for claims of indirect sex discrimination to arise.
“A fixed approach to the question of working hours will likely create a disadvantage more likely to be suffered by women given that they as a group predominantly are required to exercise childcare functions and collect children from nursery after work. The employer will then be in the position of having to justify the requirement as a proportionate means of achieving a legitimate aim, which can be difficult.
“The other point to note from this case is that where an indirectly discriminatory requirement is applied to a role in a restructure exercise, this may affect the fairness of a redundancy dismissal.”