Case Study: Indirect Sex Discrimination within an Office.

In 2010, Tom Street & Co were instructed to represent a client in a claim for unfair dismissal and indirect sex discrimination.

The case came about prior to the introduction of the Equality Act 2010 (which came into force in October 2010) and was therefore advanced under the Sex Discrimination Act 1975 but, notwithstanding this, the legal principles relied upon are set out in both pieces of legislation.

The facts of our client’s case were quite simple.  She was employed as an office manager and there were no questions in respect of her performance in that role.

She worked on a part time basis because she had a young child and therefore had to work around her childcare commitments.  Her employers were, of course, aware of this and in fact, prior to having the baby, she had worked on a full time basis prior to going part time.

Her employer made a business decision to make her position full time and because of this, it invited her to reapply for her full time position.

Our client explained that she could not do the role on a full time basis because of her childcare commitments and therefore did not apply for the role.  She was consequently made redundant and received a statutory minimum redundancy payment.

The unfair dismissal case was advanced on the basis that firstly her role was not redundant.

The legal test for redundancy, under Section 139 of the Employment Rights Act 1996 is that the employers need for a worker of a particular kind ceases or diminishes (this is paraphrasing Section 139).

What Happened at Tribunal?

We successfully argued at the Tribunal that there had been no diminution or cessation of her employer’s requirement for an office manager.

On the contrary, the need for an office manager had in fact increased.

Furthermore, we successful argued that her employer had, in any event, failed to apply its mind to the appropriate pool of people who should have been placed at risk of redundancy.  She was basically placed in a pool on her own and then selected for redundancy.  There were other office managers who should also have been considered alongside our client.

Finally, and possibly most interestingly in this case, we successfully argued that her employers requirement that the post be undertaken on a full time basis was a provision criteria or practice (PCP) which placed our client at a disadvantage because of a protected characteristic, namely her sex.

We were able to do this by relying on national statistics which support an argument that most part-timers happen to be women and therefore, by discriminating against part-timers, her employer had indirectly discriminated against our client.

Finally, we were able to successfully argue that her employers’ decision to make the position full time only was not justified (the legal test being a proportionate means to achieve a legitimate aim).

Employers are often tempted to replace part timers with full timers for business reasons but they have to be careful when doing so as there is a significant risk that, by doing so, they will be discriminating against women under Section  19 of the Equality Act 2010.