Indirect Discrimination and Redundancy

Ms Lancaster was a financial software engineer working 9am – 5pm, four days a week, subject to flexibility.

The hours suited her well due to childcare obligations.

Her line manager had verbally agreed that Ms Lancaster could finish at 5pm and then do further areas of her work from home rather than stay in the office until later.

When the line manager was on annual leave, a different manager would not allow Ms Lancaster the flexibility previously granted, and she had to stay late on numerous occasions.

Later in the year, a restructure took place which resulted in Ms Lancaster’s redundancy.

During the redundancy consultations, Ms Lancaster was given the opportunity to apply for a managerial position but she didn’t apply due to concerns about flexibility due to her childcare commitments.

Ms Lancaster brought claims for unfair dismissal, sex discrimination, harassment and part-time worker detriment.

The Tribunal and the EAT agreed

The EAT agreed that the redundancy was not engineered to get rid of Ms Lancaster, but the requirement.

The tribunal and the appeals tribunal found the employer liable for:

Indirect Sex Discrimination – the managerial role would not have been an option due to a requirement to work longer hours, therefore creating indirect discrimination. The EAT reached this conclusion as overall more women than men have childcare obligations, making long, inflexible workplace hours a prejudice against women.

Unfair dismissal – it was agreed that the redundancy wasn’t engineered to “out” Ms Lancaster, but the requirement to work after 5pm in the new role would put Ms Lancaster and women generally at a disadvantage and alternatives had not been considered. As such the dismissal was tainted by discrimination and so was unfair.

Part-time workers’ determent – Ms Lancaster had an initial agreement in place which allowed a degree of flexibility in her working hours. When removed, this then amounted to less favourable treatment on the grounds of her being a part-time worker.

This case makes it clear that if you have an employee who has a flexible working arrangement in place, you shouldn’t adjust this without agreement and you should consider designing an alternative role that accommodates that flexibility during any restructure as a failure to do so may render a redundancy dismissal unfair and indirectly discriminatory.