Redundancy Dismissal Decided to be Unfair as Tainted by Indirect Sex Discrimination

...subsequently made redundant had been subjected to indirect discrimination and unfairly dismissed.

Background

In Fidessa v Lancaster the Claimant returned from a period of maternity leave in August 2013 and began working part-time further to a flexible working request. Her part-time hours were 9am to 5pm four days a week. Leaving at 5pm was important to the Claimant as it enabled her to collect her daughter from nursery.

One aspect of the Claimant's role involved her sometimes working after 5pm to perform a specific task. By agreement with her line manager the Claimant was permitted to undertake preparatory work for this task prior to 5pm and to then complete the task remotely from home. In August 2014 at a time when her line manager was absent on annual leave, the manager of the team the Claimant worked in refused to allow the Claimant to complete the specific task with the same flexibility.

In October 2014 the manager proposed a three into two reorganisation of the Claimant's team. One of the two new roles was similar to the Claimant's existing position but with greater emphasis on the specific task and a requirement that this be performed in the workplace after 5pm. The Claimant did not apply for the role was therefore dismissed by reason of redundancy. The reasons why the Claimant did not apply for the position were her concerns in relation to working after 5pm and a perception of a lack of variety and opportunity for progression in the new role.

Employment Appeal Tribunal (EAT)

The EAT, upholding the decision of the Employment Tribunal, held that the requirements of the new position that the specific task must be done after 5pm and that it must be done from the workplace tainted the Claimant's redundancy with indirect sex discrimination and rendered it unfair.

The EAT found that the requirements put the Claimant at a disadvantage and that the disadvantage was more likely to be suffered by women given they as a group predominantly have a requirement to exercise childcare functions and collect children from nursery.

As a result the requirements were indirectly discriminatory. The EAT held that those disadvantages were, along with the Claimant's concerns in relation to variety and progression, the reasons she did not apply for the new role and therefore the reasons why she was dismissed as redundant. As the dismissal was tainted by indirect discrimination it was held to be unfair.

Best Practice

This case is a clear reminder to employers that they need to be mindful of the risk that some aspects of a proposed reorganisation could be inadvertently indirectly discriminatory. If a requirement is likely to disadvantage those with particular protected characteristics then consideration should be given to whether alternatives can be accommodated which do not have that impact. It is also a helpful reminder that employers need to consider these issues at the start of any proposed reorganisation.

For more information, please contact Nick Murrell in our Employment Law team on 0117 314 5627.