27th September, 2021
Employer ordered to pay £184,961.32 for Indirect Sex Discrimination
By way of background, indirect discrimination is broadly concerned with acts, decisions or policies which do not have the intention of treating an individual less favourably but, in reality, they cause a disadvantage to a group of people with a particular protected characteristic.
Where a disadvantage is caused to an individual with a protected characteristic, this will amount to indirect discrimination unless it can be objectively justified.
The statutory definition of indirect discrimination, as set out under the Equality Act 2010 (EqA 2010) is as follows:
- A applies to B a provision criterion or practice (PCP).
- B has a protected characteristic.
- A also applies (or would apply) that PCP to persons who do not share B’s protected characteristic.
- The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage when compared to other persons.
- The PCP puts, or would put B, at that disadvantage.
- A cannot show that the PCP is a proportionate means of achieving a legitimate aim.
Recent Case Law
Indirect discrimination, on the grounds of sex (which is one of the nine protected characteristics under the EqA 2010), was found to have occurred in the recent case of Thompson v Scancrown Ltd .
Whilst on maternity leave, Mrs Thompson explored a flexible working arrangement on her return to work. Mrs Thompson raised an informal flexible working request seeking a four-day working week. She also asked her employer if it was possible for her to finish work at 5pm, as opposed to her usual 6pm finish, in order to pick her daughter up from nursery. Mrs Thompson’s informal flexible working request was rejected.
Mrs Thompson subsequently raised a formal grievance, which detailed allegations from the start of her pregnancy up until the rejection of her informal flexible working request. She also included a formal request for flexible working in her grievance. Again, her flexible working request was rejected.
The employer claimed, amongst other reasons, that the business could not afford for Mrs Thompson to work part time and that the request would have a detrimental effect on meeting customer demand. It also alleged that for continuity purposes, clients expect consistency in the sales manager they deal with meaning that it would not be suitable to recruit additional staff to cover Mrs Thompson’s reduced working hours.
Mrs Thompson issued several claims in the Employment Tribunal, including indirect sex discrimination.
All of Mrs Thompson’s claims were rejected by the Employment Tribunal, except for her claim for indirect sex discrimination.
The Employment Tribunal found:
- The PCP in this case was the requirement that the sales manager work full-time, 9:00am to 6:00pm, Monday to Friday.
- That it is still the case that mothers are more likely to have primary childcare responsibility than fathers.
- A requirement to work until 6:00pm each day placed Mrs Thompson at a disadvantage, as she would not be able to collect her daughter from nursery in time.
- The employer could not justify the PCP as a proportionate means of achieving a legitimate aim (which the employer alleged to be the success of the business and the importance of consistency and continuity in client relationships for successful sales).
- The difficulty of making adjustments as to who would pick up Mrs Thompson’s workload did not outweigh the discriminatory impact on her.
- The employer did not show that the refusal of the proposed reduction in hours of work was proportionate to the real need of the business to maintain successful relations with customers.
As a result, Mrs Thompson was awarded £189,961.32 (for loss of earnings; pension contributions; injury to feelings and interest).
This case highlights the importance of properly considering flexible working requests, which are becoming increasingly common in light of the current pandemic. We recommend that employers have a flexible working policy in place which will help to guide managers when such requests are made.
It should also be noted that there is no qualifying length of employment requirement, i.e. two years, to bring a claim for discrimination in the Employment Tribunal. All requests for flexible working should therefore be carefully considered, irrespective of the employee’s length of service.
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