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Bumpy ride for pregnant employee

The Employment Appeal Tribunal (EAT) has recently considered an appeal against findings of sex discrimination, harassment, part time worker detriment and unfair dismissal.

Fidessa plc v Lancaster

Fidessa plc supplies software for financial service companies. Ms Lancaster had been employed by Fidessa since 2010 as an engineer in the connectivity operations team. There were 3 people within that team. Ms Lancaster took maternity leave from August 2012 to August 2013. She returned on a part time basis working 4 days per week, although it was agreed that there could be flexibility around those times, reflected in a flexible working request to this effect. Leaving at 5pm was important as she needed to be able to collect her daughter from nursery. In July 2014 Ms Lancaster was in the early stages of a further pregnancy. She told her line manager about this and needed time off to attend an antenatal appointment. Her line manager had to clear the request with another manager. The time off was refused and when the manager concerned was informed of the reason for the request, his response was “oh f**k, she’s pregnant”. This comment was not reported to Ms Lancaster at that stage, but was later.

Part of Ms Lancaster work had to be carried out after 5pm, such as deleting information that traders no longer needed. This could not be done until the end of trading on the UK markets. As part of her flexible working request, it was agreed that Ms Lancaster could complete this work from home. Sometime later, another manager refused to stick to this agreement, requiring Ms Lancaster to work after 5pm.

Proposals were then made to reorganise the connectivity department from 3 to 2. A new engineer role would be similar to Ms Lancaster’s but with a greater emphasis on work being carried out after 5pm. Ms Lancaster decided not to apply for the role and was made redundant. She raised a grievance alleging unfair treatment and discrimination which was not upheld. She appealed against her dismissal which was unsuccessful.

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

Employment tribunal (ET)

The ET concluded that the manager’s reaction to Ms Lancaster’s pregnancy amounted to direct and indirect sex discrimination and harassment. Further, the ET found that reneging on the 5pm agreement amounted to less favourable treatment on the grounds of her part time status.

The ET did not accept that the restructuring exercise was a sham to remove Ms Lancaster from Fidessa but it did find that the requirement to perform key tasks after 5pm which could not be performed at home would put women at a disadvantage. There had been no proper consideration of alternative ways of working and therefore Fidessa could not objectively justify this requirement. Therefore Ms Lancaster’s dismissal was tainted by direct and indirect sex discrimination and was rendered unfair. Fidessa appealed.

Employment Appeal Tribunal (EAT)

The EAT largely upheld the ET’s decision.

It had been agreed that the claimant was entitled to finish work at 5pm subject to some degree of flexibility and therefore requiring her to work in a way that was inconsistent with that agreement could amount to less favourable treatment, predominantly on the grounds of her part time status.

The EAT agreed that Ms Lancaster was put a disadvantage by the requirement of having to undertake work after 5pm in the workplace rather than at home. This disadvantaged women as part of the group that predominantly have a requirement to collect children at the end of the working day. Although Fidessa had a potentially fair reason for dismissal i.e. redundancy, the ET was entitled to take into account the fact that the only reason Ms Lancaster did not apply for the new role was because of the requirement to work after 5pm and this was relevant to the question of fairness.

The EAT reluctantly upheld the appeal in relation to direct sex discrimination and harassment arising from the manager’s comment about Ms Lancaster’s pregnancy. The EAT took thi decision because the ET failed to make any findings as to the impact of the comment on Ms Lancaster. This aspect was remitted back to the ET.

Comment

This case highlights the importance of being able to justify any requirements which put one particular group at a disadvantage in relation to a protected characteristic. In this case, a twofold requirement to work after 5pm in the office rather than at home was found to be more likely to disadvantage women given their child caring responsibilities. It had already been found that the work could be done remotely.

Whilst an employer may be able to impose such requirements, it is vital that they are a proportionate means of achieving the employer’s aims.  This means that the employer is able to justify them and also looks at alternatives to alleviate or eliminate any impact on the group in question.

Regard should also be had during any restructure or other changes as to the impact on part time workers, giving consideration to alternatives.

If you have questions relating to discrimination, harassment or part time workers, please call Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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